Judgment related to driving license and MV act part 2

 

JUDGMENT RELATED TO DRIVING LICENSE AND MV ACT PART 2

 

IC seeks to avoid its liability on the ground that DL was renewed by RTO clerk and not by authorized officer of RTO IC failed to examined the  responsible officer of RTO to prove its case whether IC is liable. Held; yes

2011 ACJ 2385 (J&K)

Following principles/guideline laid down by Full

Bench of SC in Para no. 108 in the case of N.I. Com.v/s Swaran Singh, reported in 2004 (1) JT 109 = 2004

(1) GLH 691 (SC)(

also see Point No103)

(i) Chapter XI of the Motor Vehicles Act, 1988

providing compulsory insurance of vehicles

against thirdparty risks is a social welfare

legislation to extend relief by compensation to

victims of accidents caused by use of motor

vehicles. The provisions of compulsory insurance

coverage of all vehicles are with this paramount

object and the provisions of the Act have to be

so interpreted as to effectuate the said object.

(ii) An insurer is entitled to raise a defence in a

claim petition filed u/s. 163A or Sec. 166 of

the Motor Vehicles Act, 1988, inter alia, in

terms of Sec. 149(2)(a)(ii) of the said Act.

(iii) The breach of policy condition e.g. disqualification of the driver or invalid

driving licence of the driver, as contained in

subsec.(2)(a)(ii) of Sec. 149, has to be

proved to have been committed by the insured for

avoiding liability by the insurer. Mere absence,

fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of

negligence and failed to exercise reasonable

care in the matter of fulfilling the condition

of the policy regarding use of vehicles by a

duly licensed driver or one who was not

disqualified to drive at the relevant time.

(iv) Insurance companies, however, with a view to

avoid their liability must not only establish

the available defence(s) raised in the said

proceedings but must also establish "breach" on

the part of the owner of the vehicle; the burden

of proof wherefore would be on them.

(v) The court cannot lay down any criteria as to how the said burden would be discharged, in as much as the same would depend upon the facts and circumstances of each case.

(vi) Even where the insurer is able to prove breach

on the part of the insured concerning the policy

condition regarding holding of a valid licence

by the driver or his qualification to drive

during the relevant period, the insurer would

not be allowed to avoid its liability towards

the insured unless the said breach or breaches

on the condition of driving licence is/are so

fundamental as are found to have contributed to

the cause of the accident. The Tribunals in

interpreting the policy conditions would apply

"the rule of main purpose" and the concept of

"fundamental breach" to allow defences available

to the insurer u/s. 149(2) of the Act.

(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake

one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.

(viii) If a vehicle at the time of accident was

driven by a person having a learner's licence,

the insurance companies would be liable to

satisfy the decree.

(ix) The Claims Tribunal constituted u/s. 165 read

with Sec. 168 is empowered to adjudicate all

claims in respect of the accidents involving

death or of bodily injury or damage to property

of third party arising in use of motor vehicle.

The said power of the Tribunal is not restricted

to decide the claims inter se between claimant

or claimants on one side and insured, insurer

and driver on the other (this view is followed

in the case of KUSUM see point no101).

In the course of adjudicating the claim for

compensation and to decide the availability of

defence or defences to the insurer, the Tribunal

has necessarily the power and jurisdiction to

decide disputes inter se between the insurer and

the insured. The decision rendered on the claims

and disputes inter se between the insurer and

insured in the course of adjudication of claim

for compensation by the claimants and the award

made thereon is enforceable and executable in

the same manner as provided in Sec. 174 of the

Act for enforcement and execution of the award

in favour of the claimants.

(x) Where on adjudication of the claim under the Act

the Tribunal arrives at a conclusion that the

insurer has satisfactorily proved its defence in

accordance with the provisions of Sec. 149(2)

read with subsec.

(7), as interpreted by this

Court above, the Tribunal can direct that the

insurer is liable to be reimbursed by the

insured for the compensation and other amounts

which it has been compelled to pay to the third

party under the award of the Tribunal. Such

determination of claim by the Tribunal will be

enforceable and the money found due to the

insurer from the insured will be recoverable on

a certificate issued by the Tribunal to the

Collector in the same manner u/s. 174 of the Act

as arrears of land revenue. The certificate will

be issued for the recovery as arrears of land

revenue only if, as required by subsec.(3) of

Sec. 168 of the Act the insured fails to deposit

the amount awarded in favour of the insurer

within thirty days from the date of announcement

of the award by the Tribunal.

(xi) The provisions contained in subsec.(4) with

the proviso thereunder and subsec.

(5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against theinsured by relegating them to the remedy before regular Court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims".

Recently Hon'ble Supreme Court in the case of Rishi Pal Singh v/s. NIA Com, 2022 ACJ 1868 (SC) has held that if the owner had taken the test of the driver who had presented fake licence to the

owner at the time of such test, owner can not be

held guilty IC is held laible.