Dhiraj Singh Thakur, J
1. This is an appeal under Section 173 of the Motor Vehicles Act praying for setting aside the judgment and award dated 12.10.2018 passed by the
Motor Accident Claims Tribunal, Srinagar (for short,‘Tribunal’)
The Tribunal by virtue of the award impugned, allowed an amount of Rs. 6,98,500/- with 6.5% per annum in favour of the petitioners from the date of
the presentation of the claim petition till realization.
2. The main ground of challenge in the present appeal is that since the driver of the offending vehicle did not have an effective and valid licence,
therefore, no liability could be fastened on the insurance company.
3. In its defence, the insurance company took two pleas; firstly, it was stated that the driver of the offending vehicle was not holding a valid driving
licence at the time of the alleged accident and secondly, it was generally stated that the petitioners be put to strict proof regarding the vehicular
documents like Registration Certificate, Route Permit, Fitness Certificate and other vehicular documents.
4. On a perusal of the award impugned, it is seen that issue No. 2 was framed by the Tribunal, which reads as under:
“Whether the owner of the offending vehicle i.e., respondent No. 2 had permitted the driver of the offending vehicle i.e., respondent
No. 1 to ply the offending vehicle without having a valid and effective driving licence thereby committed breach of policy conditions, if
so, what would be its effect on the claim petition?â€
5. The insurance company in support of their defence examined RW-Gulzar Ahmed Wani, Administrative Officer, who deposed that on receipt of the
summon, the company had deputed an investigator, who after investigation found that although the offending vehicle was insured at the time of the
accident, the conditions of the route permit were found breached. He has also stated that the driving licence of the driver was fake. On cross-
examination, however, the witness deposed that the offending vehicle was driven by one Asif Ahmed Dar s/o Abdul Gani Dar R/o Hajan and that the
driving licence of the said driver was got verified from ARTO, Poonch. The said witness, however, further stated in his cross-examination that he had
no information or knowledge whether the report of the investigation by the investigator was placed before the Tribunal or not.
6. The second witness examined by the insurance company was RW-Maroof Ahmed, Statistical Assistant, ARTO Poonch, who deposed that he had
brought the record pertaining to driving licence No. 3511/MVD/P dated 31.3.2008 with him, which was issued in favour of one Asif Ahmed S/o Abdul
Gani Dar R/o Haveli, Poonch and that he was authorized to drive the light motor vehicle and motor cycle with gear. The said witness also deposed
that the said licence bears a PSV endorsement for plying heavy vehicles. In cross-examination, the said witness deposed that the original driving
licence had not been shown to him by the insurance company and that he cannot say about the entries recorded in the original driving licence.
7. Based upon the testimony of the aforementioned witness, the issue No. 2 was decided against the respondent-insurance company by holding that
the driving licence belonged to the driver Asif Ahmed Dar and that it was valid and effective w.e.f., 31.3.2008 to 30.3.2013 and was, thus, valid even
on the date of accident on 30.12.2009.
With regard to the route permit, the Tribunal held that although there was a photocopy on record but the same was not proved in evidence and,
therefore, verbal version of the investigator as contained in the testimony of RW-Gulzar Ahmed Wani that the vehicle in question was being plied
contrary to the conditions of route permit was nothing but hear say.
8. Learned senior counsel appearing for the appellant, Mr. Kawoosa stated that the Tribunal had committed an error in law in placing the onus of
proof with regard to the route permit on the insurance company when the same ought to have been proved by the owner/driver.
9. Reliance was placed upon the Apex Court judgment titled Amrit Paul Singh & anr vs. Tata AIG General Insurance Company Ltd & ors reported in
2018 (7) SCC 558.
10. It was urged that the owner having failed to prove that there was no violation of the terms and conditions of the route permit, liability could not
have been fastened on the insurance company and if at all the company was asked to pay compensation, then right to recover the said amount from
the owner/driver ought to have been conceded to the insurance company in terms of the ratio laid down by the Supreme Court in National Insurance
Co. Ltd Vs. Swaran Singh & ors, (2004) 3 SCC 297.
11. Heard learned counsel for the parties.
12. A three judge bench of the Supreme Court in Swaran Singh’s case (supra) reiterated the proposition of law that the person, who alleges
breach, must prove the same. It was held that the insurance company is required to establish the said breach by cogent evidence and that in the event
of the insurance company failing to prove that there was any breach of the conditions of policy on the part of the insured, the insurance company
could not be absolved of its liability.
13. The aforesaid position of law continues to hold good even today and has not been diluted even by Amrit Paul Singh’s case (supra) on which
overwhelming reliance was placed by the learned senior counsel appearing for the insurance company- Mr. J.A. Kawoosa and in particular on the
penultimate para of the judgment of the Apex Court in Amrit Paul Singh’s, case, which reads thus:
“24……Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view
of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or
a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the
principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That
apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the Tripitaka, that
the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to
prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as
the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the
stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance
with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.â€
14. An isolated reading of the observations made in the aforementioned paragraph may perhaps have led learned senior counsel for the appellant to
insist during the course of arguments that the onus lay on the insured to prove that there was no breach of the policy conditions as regards the route
permit, however, when the judgement is read as a whole, the picture is otherwise. It appears from the judgment that the accident had occurred in the
said case on 19.2.2013 whereas, the vehicle was purchased in September, 2012, insured on 20.12.2012 and registered on 26.2.2013. The Tribunal held
that the insurer was not liable and while issuing directions for payment of compensation permitted recovery of the same from the owner and driver of
the vehicle.
The award was challenged before the High Court of Punjab and Haryana at Chandigarh wherein it was contended by the owner of the offending
vehicle that he had deposited the necessary fee along with application for grant of a route permit on 19.2.2013 and that the same was issued on
27.2.2013 and that since the documents had already been submitted to the transport office along with the requisite fee, it could not be said that the
vehicle was being plied without a valid permit. The High Court of Punjab and Haryana placing reliance on National Insurance Co. Ltd vs. Challa
Upendra Rao reported in (2004) 8 SCC 517 held that even if it were to be assumed that the owner had already applied for grant of a permit before the
accident, the same would not entitle the owner to ply the said vehicle.
15. It was in that background that the Apex Court in Amrit Paul Singh’s case (supra) observed that the insured had not stated whether the vehicle
had a temporary permit or any other kind of permit and that nothing had been brought on record by the insured to prove that there was any such
permit. It was in that background that the stand of the insurance company was upheld and was permitted to recover from the owner and driver the
compensation awarded and paid to the claimants.
16. In my opinion, reliance placed upon Amrit Paul Singh’s case (supra) is, therefore, inapt.
17. Be that as it may, I find no merit in the present appeal. The same is accordingly dismissed along with connected application(s), if any.
