Rajmal Vs Sanjay and Others

Prakash Shrivastava, J.

These appeals are by the owner of offending vehicle u/s 173 of the Motor Vehicles Act, 1988, challenging the award dated 23rd August, 2006 passed by the learned Additional Motor Accident Claims Tribunal, Jhabua in Claim Case No. 213/05, Claim Case No. 221/05 and Claim Case No. 243/05, by which the Tribunal has awarded the compensation to the claimants and has exonerated the insurance Company on the ground that the driver of the offending vehicle was not having valid licence to drive the vehicle. For the sake of convenience facts of M. A. No. 261/07 have been noted.

The Respondent/claimant had filed the claim petition pleading that on 4th October, 1998, the Respondent No. 1 was going from Jhabua to Thandla, on his scooter, when accident was caused by the bus bearing registration No. M.P. 11-A-3574, which was driven by the Respondent No. 2-Juwan Singh, in a rash and negligent manner. The Appellant was the owner of the bus and the bus was insured with Respondent No. 3 Insurance Company.

The Tribunal by the impugned award granted compensation of Rs. 80,000/- to the Respondent No. 1 alongwith 6% interest from the date of award. The Tribunal found that the Respondent No. 2 was driving the offending bus without any valid licence and there was breach of policy condition, therefore, the Insurance Company was not liable to pay the compensation amount. The Tribunal directed that the Insurance Company will deposit the compensation amount and will be entitled to recover it from the driver and owner of the vehicle. The other claim cases No. 221/ 05 and 243/05, were also decided by the same impugned award on the same terms.

learned Counsel appearing for the Appellant submitted that the Tribunal has committed an error in exonerating the Insurance Company without properly appreciating the driving licence of the Respondent No. 2 and ignoring the fact that the said driving licence was subsequently renewed by the RTO, Dahod and that the Appellant had not caused any wilful breach of policy conditions.

learned Counsel appearing for the Respondent Insurance Company submitted that the finding which has been arrived at by the Motor Accident Claims Tribunal is just and proper and the Insurance Company has rightly been exonerated, since, at the time of accident the driver of the offending bus was not having valid licence to drive the vehicle.

I have heard learned Counsel for the parties and perused the record.

In the present case, the owner of the vehicle Hukumchand was examined as N.A.W-4, who, stated that the Respondent No. 2-Juwan Singh was driving the vehicle for last several years. He had seen the driving license of Juwan Singh while employing him in service and that driving licence was containing the seal of RTO. He has also stated that before engaging Juwan Singh, he had made an enquiry from the previous employers Pradeep Bus, Agrawal Bus etc. and he was informed by them that Juwan Singh was an experienced and good driver. He has also stated that the driving licence issued to Juwan Singh was valid for the period 30th June, 1989 to 29th June, 1992. Thereafter, it was renewed on 18th October, 1993 and was against renewed from RTO, Dahod from 3rd January, 1997 to 2nd January, 2000. Thus, from the statement of Hukumchand, it is apparent that he had made enquiry before keeping Juwan Singh in his employment as driver. His statement that he had not made investigation, relating to the genuineness of the document relates to making enquiry from different RTO, but apparently, his statement indicates that he himself had got licence renewed from RTO, Dahod. No contrary evidence has been adduced by the Insurance-Company to show that the driving licence was not renewed from RTO, Dahod. There is substance in the argument of learned Counsel for the Appellant that the licence Ext. D/6, does not appear to be forged on the face of it since it bears the licence number of the RTO and it is in the prescribed form.

The Tribunal has exonerated the Insurance-Company by placing reliance upon the statement of N.A.W.-3-Omprakash, the employee of the RTO-Kota and N.A.W.-2-Fatehchand Agrawal the Investigating Officer of the Insurance-Company, who have deposed that the licence No. 89329, dated 12th August, 1997 was issued from RTO-Kota to Hemant Kumar son of Ramswaroop and licence No. 89389 was issued on 13th August, 1997 to Ms. Anita Dhadech, daughter of Ramesh Dhadech. Thus, the Tribunal found that the licence, which is produced was a forged licence and since the driver of the offending vehicle was not having a valid licence, therefore, the Insurance Company cannot be held liable. The Tribunal failed to properly appreciate the statement of N.A.W-3 Omprakash Soni, who stated that the register after Licence No. 89165 is not available in the Office of RTO-Kota.

In the case of a fake licence, the Insurance-Company in order to avoid its liability is required to prove that driver was not duly licenced and the owner insured was aware or had noticed that the licence was fake still permitted that person to drive the vehicle. The insurer has to satisfy the Tribunal that infringement on the part of the insured was wilful. If the insured had taken all the precaution by appointing a licence driver to drive the vehicle and it is established that it was not the insured, who had allowed the vehicle to be driven by a person not duly licenced, then the Insurance Company cannot repudiate its statutory liability. It is also worth noting that when at the time of employment, the driver produces a licence, which on the face of it look genuine, then the owner is not expected to make an enquiry from the RTO as to whether the licence was in fact issued by the competent authority or not.

The Supreme Court in the matter of United India Insurance Company Ltd. Vs. Lehru and Others, has held that:

15. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen in order to avoid liability under this provision it must be shown that there is a ''breach''. As held in Skandia''s case 1987 A.C.J. 411 : 1987 (1) T.A.C. 491 (S.C.) and Sohan Lal Passi Vs. P. Sesh Reddy and others, the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the Insurance Company disown liability? The answer has to be an emphatic ''No''. To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom, has made Insurance, at least third party insurance, compulsory. The aim and purpose being than an Insurance Company would be available to pay. The business of the Company is of Insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus, it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases, viz., that in order to avoid liability it is not sufficient to show that the person driving at the me of accident was not duly licensed. The Insurance Company must establish that the breach was on the part of the insured.

When an owner is hiring a driver he will, therefore, have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the rest of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owner to make enquiries with R.T.O''s, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of its liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner-insured was aware or has noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia''s case 1987 A.C.J. 411 : 1987 (1) T.A.C. 491 (S.C.) ; Sohan Lal Passi Vs. P. Sesh Reddy and others, and New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., We are in full agreement with the views expressed therein and seen no reason to take a different view.

The Supreme Court in the matter of Lal Chand Vs. Oriental Insurance Co. Ltd., has considered the case of fake licence where the driving licence of the driver of the offending truck was not issued by the licencing authority, but the owner had seen and examining the licence produced by the driver, took his driving test and found that the driver was competent to drive the vehicle and thereafter appointed him as driver. The Court observed that the Insurance Company cannot be absolve by holding that:

8. We have perused the pleading and the order passed by the Tribunal and also of the High Court and the annexures filed alongwith the appeal, this Court in the case of United India Insurance Company Ltd. Vs. Lehru and Others, in para 17 has observed that where the owner is satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). He will, therefore, have to check whether the driver has a driving licence and if the driver produces a driving licence, which on the face of it looks genuine, owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take test of the driver and if he finds that the driver is competent to drive the vehicle, he will hire the driver.

In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner had satisfied himself that the driver had a licence and was driving competently, there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability.

The similar issue came up before this Court in the matter of Ramesh Singh Vs. Subhash Singh and Others, where this Court has taken note of the earlier judgments on the point of the liability in case of use of fake licence by the driver without the knowledge of the owner by holding that:

20. The Division Bench of this Court in the case of Sunia Bai and Others Vs. Rammu Patel and Others, , has held that there is no evidence on record to show that the owner had the knowledge that the licence held by the driver was forged. The licence was renewed is not in dispute. In absence of such evidence, it cannot be said that there was breach of condition of the policy on the part of the owner. The owner is not supposed to make inquiry with respect to genuineness and validity of licence held by the driver in various R.T.Os. in India from where the licence could have been issued to the driver. Hence, it cannot be said to be substantial breach on the part of the owner, as such, the insurer cannot escape from the liability to make payment of compensation and held that the driver, owner and insurer are liable jointly and severally to make the payment of compensation.

The Apex Court in the case of Lal Chand Vs. Oriental Insurance Co. Ltd., , no evidence led by Insurance Company to show that due and adequate care was taken by owner or, owner had knowledge that driver was not holding a valid driving licence and held that the Insurance Company is label to pay compensation.

In the case of Radhabai v. H.K. Siddiqui 2007 A.C.J. 991 the Tribunal on the basis of evidence of R.T.O. held that driving licence produced by the driver was fake and exonerated the Insurance Company. The Division Bench of this Court has held that there was violation of the conditions of policy due to fake licence, It was also held that the Insurance Company would be liable to pay the amount, but it would be able to recover from the insured as per the law laid down by the Apex Court in the case of United India Insurance Company Ltd. Vs. Lehru and Others, National Insurance Co. Ltd. Vs. Swaran Singh and Others, ) and National Insurance Co. Ltd. Vs. Baljit Kaur and Others,

In the case of Patiraj Singh Vs. National Insurance Co. Ltd. and Others, the Division Bench of this Court has held that in the absence of the finding recorded by the Claims Tribunal that the licence held by the driver was forged to the knowledge of the owner, the Insurer cannot escape from the liability to pay compensation. Similar view is taken by the Division Bench of Indore Bench in the case of Dr. Pramodchandra and Others Vs. Ashwani Arora and Others, . The Division Bench of this Court further in the case of Prahalad Rai Vs. Shashi Kori and Others, has held that the owner had verified the licence and on prima facie scrutiny found it to be correct and there was nothing to show that it was interpolated and not a genuine one and held that the Insurance Company is liable to pay the amount of compensation.

In the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, it is held that the Insurance Company is liable to indemnify the insured and in the event of finding breach of policy only, recover the amount of compensation from the owner of the vehicle. It is further held that the driver of the vehicle was having valid licence was within the knowledge of the owner of the vehicle. In the case of National Insurance Corporation Ltd. Vs. Mrs. Kanti Devi and Others, it is held that once defence is taken by the Insurance Company that the licence was fake or the driver did not have requisite driving licence to drive particular type of vehicle then it will be for insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of licence held by the driver. The effect of evidence in this regard has to be considered by the concerned Tribunal. However, in this case, there is no evidence led by the Insurance Company that the insured did not take adequate care and caution to verify genuineness or otherwise of licence held by the driver. Even in the written statement filed before the Claims Tribunal, the Insurance Company has not raised the objection that the insured has not taken steps to verify genuineness or otherwise of the driving licence. Insurance Company has pleaded that the driver of the vehicle was not having valid licence, therefore, Insurance Company is not liable to indemnify insured. Mere finding that driver of the vehicle was not having valid licence will not absolve the Insurance Company from its liability and Insurance Company is liable to indemnify the insured.

In view of the aforesaid various decisions of the Division Bench of this High Court as well as the dictum of the Apex Court, I hold that even if the driver was having forged licence, then also Insurance Company is liable to indemnify the insured. Hence, the exoneration of the insurer by the Tribunal is neither presentable or invulnerable. Thus, it is held that the owner, driver and insurer are liable jointly and severally to make the payment of compensation.

this Court in the matter of National Insurance Co. Ltd. v. Vidhyabai and Ors., reported in 2009 (II) MPWN 62, has relying upon the earlier judgment of the Supreme Court held that the Insurance Company in support of its defence of breach of policy condition is to prove breach was wilful on the part of the insured and without such proof the insurer cannot repudiate its liability.

From the aforesaid judgments, it is clear that it is not enough for the Insurance Company to establish that the driver of the offending vehicle was having a fake licence, but in order to repudiate its liability, the Insurance Company is required to establish that the owner of the vehicle had not taken due care at the time of engaging the driver and had permitted the driver to drive the offending vehicle in spite of the knowleged that the driver was having the fake licence. The owner of the vehicle is not expected to make enquiry from the R.T.O. in respect of the genuineness of the licence.

learned Counsel appearing for the Insurance-Company has placed reliance upon the judgment in the matter of Sardari and Others Vs. Sushil Kumar and Others, in the matter of New Indian Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir and Another, , in the matter of United India Insurance Co. Ltd. Vs. Rakesh Kumar Arora and Others, in the matter of Premkumari and Others Vs. Prahlad Dev and Others, and in the matter of National Insurance Co. Ltd. Vs. Gulab Khan and Others, but these judgments do not help the Insurance Company since these are the cases where, the driver, of the offending vehicle either had no licence at all or he was having the licence to drive the vehicle other than one which he was driving at the time of accident. But present is not a case of no licence, but it is a case, where the driver was having a licence which was believed to be genuine by the owner of the vehicle and which by the Tribunal was found to be fake, therefore, it is not a case of wilful breach of the Insurance policy by the insured.

In the present case, the evidence shows that the Appellant had taken due care at the time of employing the driver Respondent No. 2-Juwan Singh and had employed him believing the driver licence Ext. D/ 6 to be genuine. Later he has also got the licence of driver renewed from RTO Dahod, which fact has not been controverted. Thus, it cannot be held that the owner had permitted the drive to drive the vehicle in spite of his knowledge that the licence of the driver was false or he had deliberately caused breach of policy condition.

In view of the aforesaid analysis, it is held that the Tribunal has committed an error in exonerating the Insurance Company. The appeals filed by the Appellant owner are allowed to the extent indicated above.