The Divisional Manager, Divisional Office -I, the Oriental Insurance Company Ltd., Patna v. Ram Narayan Keshri

Heard Mr. Barun Kumar Choudhary, learned counsel appearing for the appellant on the interlocutory application filed for condonation of delay of 49 days. Learned counsel submits that the delay has occasioned in obtaining departmental approval in the light of legal advice tendered and that there was no deliberate laches or delay by the appellant in filing this Appeal. Having heard learned counsel and having perused the explanation given in the application, I am satisfied that the delay be condoned and is hereby condoned. I.A. 246 of 2011 is allowed. M.A. No. 31 of 2011 This appeal is directed against the judgment and award Patna High Court MA No.31 of 2011 (5) dt.08-07-2013 2 dated 03.07.2010/23.8.2010 passed by the learned Additional District Judge-VI-cum-Motor Vehicles Accident Claim Tribunal, Patna in Claim Case No. 157 of 2005, whereby learned Tribunal has allowed the claim case and has directed the appellant insurance company to make payment of the compensation amount of Rs. 4,04,500/- together with interest @ 6 per cent per annum with effect from institution of the claim case until realization thereof. Facts of the case in brief is that the deceased is stated to have been travelling on scooter when it met with an accident with the offending jeep bearing registration no. BR-1V-7291. The deceased who happened to be the son of the claimants sustained multiple injuries. He was rushed to the Sri Ram Hospital at Patna where during the course of treatment he died on 09.09.2005. A police case was registered giving rise to Bihta P.S. Case No. 252 of 2005 for negligent driving. It is not in dispute that the offending jeep was insured with the appellant insurance company bearing policy no. 331207 /30/2006 and the insurance was valid and operative on the date of accident. On the basis of the rival contentions and the evidence led by the parties, the Tribunal after formulating the issues has allowed the claim directing the insurance company to make the payment with the liberty to Patna High Court MA No.31 of 2011 (5) dt.08-07-2013 3 recover the same from the owner if it finds that any of the policy conditions had been violated. Being aggrieved the insurance company has come before this Court in the present appeal I have heard Mr. Barun Kumar Choudhary, learned counsel appearing for the appellant. Mr. Choudhary has raised following issues for contesting the award, namely, (a) the claim was not supportive by any income proof or the age proof of the deceased or his mother and thus the computation of the compensation is not correct; (b) in absence of any driving license or the route permit being produced before the Tribunal by the owner/driver of the offending jeep, the insurance company could not have been saddled with the liability; (c ) in the circumstances where the insurance company is not liable for payment, the direction given to the insurance company to make payment and then to make recovery is not sustainable under the judicial pronouncement. Mr. Choudhary has relied upon a judgment of the Supreme Court reported in (2007) 6 SCC 657 (Yallwwa & ors. vs. National Insurance co. Ltd. & Anr.), particularly paragraph 10 and 11 to submit that there has been a policy violation. I have heard Mr. Choudhary and have perused the impugned award. Insofar as the issue of income and age proof is concerned, perusal of the award manifests that the computation of Patna High Court MA No.31 of 2011 (5) dt.08-07-2013 4 compensation has been made on the basis of the age of the mother of the deceased assessed at 40 years and thus by applying a multiplier as applicable under the second Schedule of 15, the computation has been worked out. Perusal of the issues raised by the appellant insurance company as taken note of in paragraph 3 of the award manifests that the claim was never contested on the age proof and in the circumstances the age of the mother of the deceased assessed at 40 years is not unreasonable or unbelievable. This would bring this Court to the second issue that is the absence of route permit or driving license. On this score the judgment of the Supreme Court rendered in the case of Oriental Insurance Co. Ltd. vs. Meena Variyal reported in (2007) 5 SCC 428, more particularly paragraph 16 reads as follows: “16…………Mere absence of or production of fake or invalid driving licence or disqualification or the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon facts and circumstances of each case. Even when the insurer is Patna High Court MA No.31 of 2011 (5) dt.08-07-2013 5 able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to the found to have contributed to the cause of the accident. The question whether the owner has taken reasonable care to find out whether the driving licence produced by the driver was fake or not, will have to be determined in each case…………..” The conclusion drawn in the case of Meena Variyal on the issue of licence and violation of any policy condition would answer the issue raised by Mr. Choudhary regarding absence of route permit or driving licence. Last but not the least, is the issue regarding the direction issued by the tribunal to the insurance company of making payment of the compensation amount with liberty to recover the same. The said issue is no more res integra in view of the judgments of the Supreme Court which has been taken note of in a recent judgment reported in 2013(2) PLJR 218 (Manager National Insurance vs. Saju P. Paul & Anr.). For the reasons aforesaid, this Court is not persuaded to interfere with the judgment and award impugned and this appeal is