Afr High Court
Case Details
1 / 8 Digitally signed by BHOLA NATH KHATAI Date: 2025.04.25 16:45:13 +0530 2025:CGHC:18735 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1672 of 2018 Reserved on 02.04.2025 Delivered on 25.04.2025 The National Insurance Company Limited Branch Office Opposite Central Bank, Near R. M. Office, Jagdalpur, City Bastar Chhattisgarh. Through Authorized Signatory For National Insurance Company Limited Divisional Office Vyapar Vihar Road, Bilaspur, Chhattisgarh. versus ... Appellant 1. Harishchandra Vishvas S/o Kalipad Vishvas Aged About 41 Years R/o Village Jugane Camp P.S. Pharasgaon Tehsil Pharasgaon City And District Kondagaon Chhattisgarh. 2. Bharatram Markam S/o Duvaruram Markam Aged About 25 Years Caste Gond, R/o Bhurkabhata Bhandarsivni Tehsil Pharasgaon District Kondagaon Chhattisgarh ......................… Driver Of The Motorcycle Bearing No. C G 17/ K A. 5448. 3. Pavan Markam S/o Dasruram Markam R/o Bhandarsivni Tehsil Pharasgaon District Kondagaon Chhattisgarh ...............… Owner Of The Motorcycle Bearing No. C.G 17/ K A 5448. ... Respondents For Appellant
Legal Reasoning
: Mr. B. N. Nande, Advocate For Respondents : None 2 / 8 Hon'ble Shri Justice Sanjay Kumar Jaiswal, J. C A V
Decision
O R D E R 1. This is an insurer’s appeal under section 173 of the Motor Vehicles Act, 1988 challenging the award dated 17.05.2018 passed by Additional Motor Accident Claims Tribunal, Kondagaon (CG) in Claim Case No.26/2016 awarding compensation of Rs.3,93,000/- with interest @ 6% per annum, from the date of application till its realization, in favour of the claimants and against the appellant - Insurance Company. 2. The gist of claim in brief is that on 25/01/2010, claimant Harishchandra Vishvas was returning to his home at Village-Jugani Camp, Police Station -Farasgaon, riding his bicycle at about 08.00 pm. At that time, respondent No.2 Bharatram Markam driving the offending motorcycle bearing registration No.CG 17 KA 5448 in a rash and negligent manner, hit claimant Harishchandra Vishvas, as a result of which he suffered grievous injuries on his left leg and thigh. A fracture was found in his leg and he became permanently disabled. A report being made in this regard at Police Station – Farasgaon, Crime No. 07/2010 was registered and charge sheet was filed against the driver of the offending vehicle, Bharatram Markam. Claimant Harischandra Vishwas preferred a claim application under Section 166 of the Motor Vehicles Act, for compensation of Rs. 4,80,000/-. The claimant himself was examined before the Tribunal, while on behalf of the insurance company Development Officer H. N. Pandey was examined. The driver and registered owner of the offending vehicle did not examine any witness. After hearing both the parties, learned Tribunal held that claimant Harischandra Vishwas suffered 50% permanent disability and considering the loss under various heads awarded compensation of Rs.3,93,000/- with interest in favour of the 3 / 8 claimant, in which the driver of the offending vehicle, registered owner and the insurer were held liable for compensation. 3. This appeal has been filed by the insurance company of the offending vehicle challenging its liability part in which it is argued that the driver of the offending vehicle did not have a valid and effective driving license at the time of the accident. The burden of proof of the driver/owner of the offending vehicle having a valid driving license has not been properly discharged. The offending vehicle was a motorcycle but the insurance conditions have been violated due to the driver not having a valid and effective driving license to drive the offending vehicle. Therefore, the insurance company is not liable for any compensation. Hence, prayed for allowing the appeal by exonerating the Insurance Company from its liability. 4. There is no representation on behalf of the respondents. 5. Heard learned counsel for the appellant and perused the record with utmost circumspection. 6. The Development Officer of the appellant insurance company, H. N. Pandey has stated that the insurance policy of the offending vehicle is Ex. D-1. He has also stated that the insurance conditions have been violated as the driver Bharatram Markam did not have a valid and effective driving license to drive a motorcycle with gear. Therefore, the insurance company should be exonerated from its liability. 7. In the case, the driver and registered owner of the offending vehicle have specifically pleaded in their written statement that the driver was a valid licence holder, whereas the appellant insurance company in its reply has stated that the insurance conditions have been violated as the driver did not have a valid and effective driving license at the time of the accident. On behalf of the insurance 4 / 8 company, its Development Officer H. N. Pandey has been examined who has accepted this fact in his cross-examination that he has not submitted a certified/true copy of any particular regarding driver Bharatram Markam not having a driving license to drive a motorcycle with gear but he himself has stated that he has submitted a photocopy of the same. No witness has been examined on behalf of the driver and the registered owner in the case. 8. The burden of proof regarding valid & effective driving license and violation of insurance conditions has been dealt with by the Hon'ble Supreme Court in the case of Nirmala Kothari v. United India Insurance Company Limited, (2020) 4 SCC 49 holding that if the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. In paragraphs – 9, 10 & 12 it has been held as under: “9. Having set forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. Vs. Lehru, (2003) 3 SCC 338 - a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC vs. National Insurance Co. we may extract the relevant paragraph from the Judgment: (Pepsu case, (2013) 10 SCC p. 223, para 10) “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the 5 / 8 licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh’s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.” 10. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving 6 / 8 licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.” 9. The Hon’ble Supreme Court, in the matter of Pappu and Others Vs. Vinod Kumar Lamba and Another reported in 2018 (3) SCC. 208, in paragraphs-12 & 13, in respect of the burden of proof regarding a valid licence, has held as follows: “12. This Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Ors., (2004) 3 SCC 297, has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehi- cles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehi- cle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. 13. In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the 7 / 8 respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle.” 10. In the light of the above decisions of the Hon’ble Supreme Court and considering the pleadings of both the parties and the evidence presented, it becomes clear that driver Bharatram Markam has not been prosecuted by the Police on the ground that he did not have a driving licence. As per the pleadings made by driver Bharatram Markam himself and the registered owner of the offending vehicle, driver Bharatram Markam had a valid and effective driving licence at the time of accident. Although no witness has been examined on their behalf, but from seizure Ex. P-7 of the charge sheet presented by the claimant side itself, it is found that the driving licence number of Bharatram Markam was B/26/BTR/KGN, which was valid from 30/12/2000 to 20/12/2020. Thus, in the light of the aforesaid judgments, it is clear from the pleadings and the material available on record that not only have the driver and the registered owner of the offending vehicle pleaded prima facie in this regard but there is also evidence on record that driver Bharatram Markam was possessing a driving licence on the date of the accident. Since prima facie it is clear from the record that Bharatram Markam had a driving licence, in such a situation the burden falls on the appellant - insurance company to prove that the said driving licence was not 8 / 8 valid or effective and that the insurance conditions were violated. 11. In this regard, the Development Officer of the appellant insurance company, H. N. Pandey has accepted that driver Bharatram Markam was a driving licence holder but he has also stated that the driver did not have a driving licence for a motorcycle with gear i.e. a particular type of vehicle. The burden of proving this particular defence/plea was on the appellant insurance company itself, but the insurance company has not been able to establish the fact by producing the particulars of the driving licence of driver Bharatram Markam that he did not have a valid and effective driving licence for that particular type of offending vehicle. 12. Thus, the appellant - insurance company could not discharge its burden of proof that the licence which is said to be with the driver Bharatram Markam was not valid and effective in respect of the concerned offending vehicle on the date of accident. Hence, no illegality or irregularity is found in the impugned award of the Tribunal. The appellant insurance company has not been able to discharge its burden of proof that there has been a breach of insurance conditions, therefore, the appellant insurance company cannot be exonerated from its liability. In such a situation, no interference is required in the impugned award passed by the Tribunal. 13. Accordingly, the appeal is dismissed. 14. Records of the Tribunal along with a copy of this order be sent back forthwith for compliance and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) JUDGE Khatai