National Insurance Company Limited Vs Mushtaq Ahmad Kutary (Jammu and Kashmir High Court)
Held that absence, fake or invalid driving licence or disqualification of driver to drive, are not in themselves defences available to the insurer against either insured/ third parties, to avoid liability towards insured. Insurer has to prove that insured was guilty of negligence and failed to exercise reasonable care.
Facts- As the offending vehicle turned turtle, resultantly passenger travelling in the vehicle got serious injured. Thus, respondent (claimant) sought compensation of Rs. 40 Lakhs before the Motor Accident Claims Tribunal, Anantnag. Insurance Company resisted the claim petition before the Tribunal. Their stand was that the driver of offending vehicle was not holding valid and effective driving licence and without PSV endorsement thereon.
Tribunal awarded compensation of Rs. 4,13,000 along with 6% interest per annum from the date of institution of claim till realization. Being aggrieved, the insurance company filed appeal and the court allowed the appeal and gave right of recovery to insurance company. Review thereof is sought here.
Conclusion- Held that the breach of policy conditions, e.g., disqualification of driver or invalid driving licence of driver, have to be proved to have been committed by insured for avoiding liability by the insurer and that mere absence, fake or invalid driving licence or disqualification of driver to drive at the relevant time, are not in themselves defences available to the insurer against either insured or third parties, and to avoid liability towards insured, the insurer has to prove that 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 duly licenced driver or one who was not disqualified to drive at the relevant time. It has also been made clear by the Supreme Court that with a view to avoid their liability, the insurance companies must not only establish the available defence(s) raised in the proceedings but must also establish breach on the part of owner of the vehicle and that the burden of proof therefore would be on them.
So, from above discussion it is manifest that a person holding driving licence to drive light motor vehicle can also drive transport vehicle of such class that too without any endorsement to that effect in his driving licence.
FULL TEXT OF THE JUDGMENT/ORDER OF JAMMU & KASHMIR HIGH COURT
1. Delay of 88 days in filing Petition seeking review of judgement/ order dated 10th March 2015 passed in CIMA no.77/2014 titled National Insurance Company Limited v. Mushtaq Ahmad Kutay and others, is sought to be condoned.
2. Instant application has been filed on 8th July 2015. The delay is not such as if it could be said or termed to be inordinate one. As rightly pointed out by learned counsel for respondent no.3/review petitioner that the Appeal (CIMA no.77/2014) was listed before a Bench of this Court on 10th March 2015 and was decided on the same day, although dismissed, yet right of recovery was given against owner on the ground of engaging a driver with licence not carrying “PSV” endorsement.
According to learned counsel, respondent no.3/review petitioner came to know about passing of judgement/order dated 10th March 2015 only when recovery petition was filed before the Tribunal and he was summoned to appear before it and, accordingly, he applied for certified copy of judgement dated 10th March 2015 and subsequently approached this Court.
3. In view of above, there is sufficient cause shown by applicant for consideration and, resultantly, the application is allowed and delay of 88 days in filing Review Petition is condoned.
4. Disposed of.
Review Petition No.54/2022
5. I have heard learned counsel for parties and considered the matter.
6. Review of judgement/order dated 10th March 2015 passed by a Bench of this Court in an Appeal, bearing CIMA no.77/2014 titled as National Insurance Company Limited v. Mushtaq Ahmad Kutay and others, is sought for in the instant petition.
7. As is gatherable from perusal of the file, a claim petition was filed by respondent no.1/claimant before the Tribunal on 27th February 2007, averring therein that on 1st January 2004, he was traveling in offending vehicle bearing Registration no.JK01B-3221, which was going from Khanabal towards Srinagar, in connection with election rally and on reaching Chechekoot, Awantipora National Highway, offending vehicle turned turtle, resultantly passengers traveling in the vehicle got serious injured and that petitioner also received multipole injuries on various parts of his body particularly on head and had been rendered disabled. Respondent no.1/claimant sought compensation in the amount of Rs.40.00 Lakhs before the Motor Accident Claims Tribunal, Anantnag (for short “Tribunal”)
8. Insurance Company resisted the claim petition before the Tribunal. Their stand was that driver of offending vehicle was not holding valid and effective driving licence and without PSV endorsement thereon.
9. The Tribunal, in view of pleadings of parties, framed following Issues for determination, which are:
