High Court
Facts
11 FA 1191 19.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD11 FIRST APPEAL NO. 1191 OF 2019THE NEW INDIA ASSURANCE CO. LTD., THR ITS AUTHORIZEDSIGNATORY, AURANGABADVERSUSSONALI @ DNYANESHWARI RAJENDRA NETKE AND ANR…AND12 FIRST APPEAL NO. 1192 OF 2019THE NEW INDIA ASSURANCE CO. LTD., THR ITS AUTHORIZEDSIGNATORY, AURANGABADVERSUSRAJENDRA PIRAJI NETKE AND ANR...Advocate for Appellant : Mr. Deshmukh Mohit R. Advocate for Respondent No. 1 : Mrs. Rani Bharuka Bora h/f Mr. Satyajit S.Bora …CORAM: SHAILESH P. BRAHME, J.DATE: 01.10.2025PER COURT : Heard both sides.2.Already it is indicated to the parties that appeal shall be decidedfinally at the admission stage. None appears for the owner of the vehicle,though served.3.Both appeals are arising out of self-same accident, in which claimants-husband and wife proceeding on a motor cycle met with an accident due todash given by the offending vehicle, Tempo. They preferred separate claimpetition Nos. 227/2017 and 228/2017.4.In First Appeal No. 1192/2019 in which Rajendra is claimant, anamount of Rs. 21,53,862/- is awarded. In First Appeal No. 1191/20191/7
Legal Reasoning
11 FA 1191 19.odt12. This Court in National Insurance Co. Ltd. hasnoticed the defences available to the insurance companyunder Section 149(2)(a)(ii) of the Motor Vehicles Act,1988. The insurance company is entitled to take a defencethat the offending vehicle was driven by an unauthorisedperson or the person driving the vehicle did not have avalid driving licence. The onus would shift on the insurancecompany only after the owner of the offending vehiclepleads and proves the basic facts within his knowledge thatthe driver of the offending vehicle was authorised by him todrive the vehicle and was having a valid driving licence atthe relevant time.13. In the present case, Respondent 1 owner of theoffending vehicle merely raised a vague plea in the writtenstatement that the offending Vehicle No. DIL 5955 wasbeing driven by a person having valid driving licence. Hedid not disclose the name of the driver and his otherdetails. Besides, Respondent 1 did not enter the witness boxor examine any witness in support of this plea. Respondent2 insurance company in the written statement has plainlyrefuted that plea and also asserted that the offendingvehicle was not driven by an authorised person and havingvalid driving licence. Respondent 1 owner of the offendingvehicle did not produce any evidence except a drivinglicence of one Joginder Singh, without any specific standtaken in the pleadings or in the evidence that the sameJoginder Singh was, in fact, authorised to drive the vehiclein question at the relevant time. Only then would onusshift, requiring Respondent 2 insurance company to rebutsuch evidence and to produce other evidence to4/7 11 FA 1191 19.odtsubstantiate its defence. Merely producing a valid insurancecertificate in respect of the offending truck was not enoughfor Respondent 1 to make the insurance company liable todischarge his liability arising from rash and negligentdriving by the driver of his vehicle. The insurance companycan be fastened with the liability on the basis of a validinsurance policy only after the basic facts are pleaded andestablished by the owner of the offending vehicle that thevehicle was not only duly insured but also that it was drivenby an authorised person having a valid driving licence.Without disclosing the name of the driver in the writtenstatement or producing any evidence to substantiate thefact that the copy of the driving licence produced in supportwas of a person who, in fact, was authorised to drive theoffending vehicle at the relevant time, the owner of thevehicle cannot be said to have extricated himself from hisliability. The insurance company would become liable onlyafter such foundational facts are pleaded and proved by theowner of the offending vehicle.”11.In view of the candid exposition of law by the Apex Court, mereproduction of valid insurance policy certificate is not sufficient for holdingthe Insurance Company liable to discharge its liability arising out of rash andnegligent driving by driver of the vehicle. In the present case, the basic andfoundational facts are missing that the driver of the offending vehicle washaving valid driving licence. The owner of the offending vehicle did not fileany written statement or produce on record the driving licence. The burdenis upon the owner or driver of the offending and if the foundation facts arepleaded and proved then onus shifts to the insurance company. I am of theconsidered view that present case is squarely covered by the ratio laid downby the Apex Court as referred above. The findings in this regard referred5/7 11 FA 1191 19.odtabove are perverse.12.The learned counsel for the appellant further adverted my attention toSection 134(c) of the Act, which obliges driver or other person in-charge ofthe vehicle to give relevant information in writing to the insurer. The saidobligation has not been discharged in the present case. It is relevant to referto Section 134(c) of the Act :“Section 134-Duty of driver in case of accident and injury toa person:(a)…(b)...(c)Give the following information in writing to theinsurer, who has issued the certificates of insurance, aboutthe occurrence of the accident, namely:-(i)insurance policy number and period of itsvalidity;(ii)date, time and place of accident;(iii)particulars of the person injured or killed in theaccident;(iv)name of the driver and the particulars of hisdriving licence.Explanation:- For the purpose of this Section, the expression“driver” includes the owner of the vehicle.”13.In view of the above provision, I find substance in the submission oflearned counsel for the appellant-Insurance Company that the InsuranceCompany cannot be held liable and there is a breach of policy.14.I have considered the findings recorded by the Tribunal in respect ofthe quantum of the compensation. There is oral and documentary evidenceon record led by the claimants. I do not find that there is any serious flaw inthe findings recorded by the Tribunal. The objection of the InsuranceCompany in respect of quantum arrived at by the Tribunal stands overruled.I, therefore, pass following order:6/7 11 FA 1191 19.odtORDER(i)Both First Appeals are allowed.(ii)Impugned judgments and awards passed by the Courtbelow are quashed and set aside to the extent of imposingliability upon the appellant-Insurance Company for the paymentof compensation in both the proceedings.(iii)It would be open for the appellant-Insurance Company torecover the amount from the owner of the vehicle in accordancewith law.(iv)In view of final disposal of the appeals, the balanceamount, which is lying with this Court in both the appeals shallbe disbursed to the claimants with accrued interest. ( SHAILESH P. BRAHME, J.) mkd/-7/7
Arguments
11 FA 1191 19.odtclaimant is wife-Sonali and an amount of Rs. 1,00,190/- is awarded to heras a compensation. The appellant-insurnace company is made liable to paythe compensation jointly and severally. I propose to refer to the parties andthe proceedings to the First Appeal No. 1192/2019.5.Learned counsel for the appellant Mr. Deshmukh appearing for theInsurance Company submits that respondent no. 2, who is the owner of thevehicle appeared before the Tribunal but did not file written statement. Nodocumentary evidence was produced by him. The appellant Company hastaken specific stand of breach of policy. The driver of the offending vehiclewas not having valid driving licence at the relevant time. It is error ofjurisdiction in holding that the appellant insurance company failed todischarge the burden regarding breach of policy. Reliance is placed on thejudgment of the Supreme Court in the matter of Pappu and others Vs. VinodKumar Lamba and another; (2018) 3 Supreme Court Cases 208. It is furthersubmitted that the quantum arrived at in both the proceedings is vulnerable.The Tribunal did not appreciate the documentary evidence andunreasonable and exorbitant quantum has been awarded.6.Per contra, learned counsel Mrs. Bora repels the submissions. Shesupports the impugned judgment and award. It is submitted that theappellant-Insurance Company did not lead any evidence. The claimantshave led documentary as well as oral evidence to prove the entitlement andcompensation. It is submitted that the burden was upon the appellant-Insurance Company to prove breach of policy. No fault can be attributed tothe claimants for not producing on record the driving licence.7.I have considered the rival submissions of the parties. I have gonethrough record and proceedings also. The owner of the vehicle thoughcaused appearance before the Tribunal did not contest both the petitions byfiling any written statement. No documentary evidence is placed on recordon his part. The licence of the driver of the offending vehicle was not placed2/7 11 FA 1191 19.odtbefore the Tribunal in either of the proceedings.8.The claimants led oral as well as documentary evidence. Against thedriver of the offending vehicle, criminal action is taken and a charge-sheethas also been filed. He is facing the prosecution.9.The predominant challenge of the appellant-Insurance Company is thebreach of policy in terms of Section 149 of the Motor Vehicles Act, 1988(hereinafter referred to ‘the Act’). The insurance policy (Exh. 28) wasplaced on record showing the validity period from 04.04.2016 to07.03.2017. The accident occurred on 08.06.2016, which is covered by thepolicy. It has not been brought on record that the driver of the offendingvehicle was holding valid driving licence. The issue to that effect wasframed by the Tribunal, and it is answered in following manner :“As to issue no. 3:The burden was on respondent No. 2 to prove that therespondent No. 1 committed breach of the insurancepolicy Exh. 28. But to prove the same respondent No. 2 didnot examine any witness nor filed any documents onrecord. On perusal of copy of insurance policy Exh. 28 it isapparent that the said policy was valid from 04.04.2016 to07.03.2017. The accident occurred on 08.06.2016 i.e.during the policy period. As the respondent no. 2 couldnot prove breach of insurance policy, issue no. 3 isanswered in negative.”10.While assailing the above referred findings, reliance is placed on thejudgment of the Supreme Court in the matter of Pappu Vs. Vinod Kumar(supra). Following are the relevant extracts:“11. The question is : whether the fact that theoffending vehicle bearing No. DIL 5955 was duly insured byRespondent 2 insurance company would per se make theinsurance company liable ?3/7