Judgment:
Mansoor Ahmad Mir, J.
1. In terms of note of the Registry Mr. B.A. Zargar, Advocate, caused appearance on behalf of respondent No. 3 and Mir Muneer Ahmad Bhat, Advocate, caused appearance on behalf of respondent No. 4, but there is no representation on their behalf, as such, are set exparte.
2. Challenge in this appeal is to the award/judgment dated 23rd of August, 2007 passed by Motor Accident Claims Tribunal, Anantnag in claim petition No. 18 titled Mst. Saja and Anr. v. Nissar Ahmad Dar and Ors. for short the impugned award.
3. A claim petition came to be filed by the claimants, namely, Mst. Saja and Khalida-respondents 1 and 2 before the Motor Accident Claims Tribunal, Anantnag for grant of compensation to the tune of Rs. 29.50 lacs, on the grounds taken in the claim petition.
4. It is averred in the claim petition that respondent-Nisar Ahmad-driver has driven the vehicle bearing registration No. JK03/911 rashly and negligently at Malapora National Highway on 26th of April, 2003 and hit the deceased, namely, Ghulam Mohammad Malik who sustained injuries and succumbed to injuries. Deceased was 50 years of age and was contractor by profession and in addition to was having Orchards, agricultural land and also was running a rice husking mill as owner. Further they have stated that Saja has lost her matrimonial life and Khalida has lost love and affection of her father, and thereby have been deprived of loss of dependency, hope and help. Driver and owner have not chosen to appear despite service and were set exparte. Appellant-insurer appeared and resisted the petitioner. Following issues came to be framed:
1. Whether on 22.4.2003, deceased while waiting for bus at village Malapora National Highway was hit by Truck bearing registration No. 911-JK03, and succumbed to injuries sustained in the accident? OPP
2. Whether accident occurred due to rash and negligent driving of the vehicle by Nisar Ahmad Dar driver? OPP
3. If issues No. l and 2 are proved in affirmative to what amount of compensation is the petitioners entitled to? OPP
4. Whether driver was not having valid driving licence at the time of accident? OPR-3
5. Relief.
5. It appears that appellant-insurer has also moved an application in terms of Section 170 of the Motor Vehicles Act, for permitting it to contest the claim petition on all grounds as are available to the driver and owner came to be granted vide order dated 14th of December, 2004.
6. Mst. Saja besides examining herself examined, Arshida, Ghulam Nabi, Abdul Ahad Bhat and Mohammad Akram Wani in support of their case.
7. Appellant-insurer examined Hakim Muzaffar and Imtiyaz Ahmad Shah in support of their case.
Brief resume of the evidence of the claimants;
8. All the witnesses examined by the claimants have stated that Nissar Ahmad-driver has driven the vehicle (Tipper) rashly and negligently on 22nd of April, 2002 at Malapora National Highway, Qazigund and hit the deceased, namely, Ghulam Mohammad Malik, who sustained injuries and succumbed to injuries. The deceased was contractor and was having Orchard and other agricultural land. He was earning Rs. 10000 to Rs. 12000 per month and they have given his age as 50 to 55 years. Whereas, claimants have pleaded in the claim petition that the age of the deceased was 50 years.
9. Witness, Imtiyaz Ahmad Shah, examined by the insurer- appellant has deposed that the vehicle was insured at the relevant point of time but the driver was having licence to drive LTV vehicle while as offending vehicle was tipper. In cross examination, he has stated that he has not obtained training from Motor Vehicles Department.
10. The Tribunal after considering the evidence held that the claimants have proved the faction of accident, cause of death of the deceased, Ghulam Mohammad Malik and accordingly issue Nos. 1 to 3 came to be decided in their favour.
11. While deciding issue No. 4, the tribunal held that the driver was not having valid and effective driving licence and gave option to the insurer-appellant to recover the amount. It is apt to reproduce the relevant portion of the impugned award herein:
Cumulative effect of the aforesaid law shows that the Insurance Company has to be given an option to recover the compensation which they will be asked to pay as third party liability from the insured. This issue is accordingly disposed of.
12. The impugned award is only assailed by the insurer- appellant to the extent of saddling it with the liability.
13. While addressing arguments, learned Counsel for the appellant stated that Tribunal has fallen in error in saddling insurer with liability. The owner- insured was to be saddled with the liability and in the alternative argued that the Tribunal was under legal obligation to attach the offending vehicle enabling the insurer-appellant to recover the amount.
14. The insurer appellant has not led any evidence in order to prove that the owner was aware of the fact that driver Nissar Ahmad was not competent to drive the offending vehicle and he was not possessing the valid and effective licence. Further, there is no evidence on the file indicating that owner has committed a willful breach. It is beaten law of the land that it is for the insurer to plead and prove that owner has committed conscious breach nor mere breach:
12. Apex Court in case titled as National Insurance Co. Ltd. v. Swaran Singh reported in AIR 2004 SC 1531, held as under:
'105. ...
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, 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. (vi) Even where the insured 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 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 incident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the 'fundamental breach' to allow defences available under Section 149(2) of the Act.' 13. It is apt to reproduce relevant portion of para-6 of the said judgment herein:.It is clear from the above decision when the owner after verification satisfied himself that driver has a valid licence and driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the Insurance Company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive.
15. The question of attaching the offending vehicle or attaching any other property of the insured in order to enable the insurer to recover the amount, is secondary. The first and foremost point is to prove breach which is lacking.
16. In the given circumstances of the case, I deem it proper to set-aside the finding returned by the Tribunal viz-a-viz issue No. 4 and direct the Tribunal to issue summons by ordinary mode and registered post to driver and owner and thereafter decide issue No. 4 after affording opportunity to the insurer-appellant and insured/owner to lead evidence in support of their stand..
17. There is no dispute about adequacy of compensation. However, I have gone through the record and I am of the considered view that tribunal has awarded just compensation, needs no interference.
18. Keeping in view the above discussion, this appeal is partly allowed and impugned award is modified to the extent indicated above.
19. Registry to disburse the amount to the claimants in terms of the impugned award.
The insurer-appellant is directed to cause appearance before the Tribunal on 1st of June, 2008.
Registry to send down the record along with a copy of this judgment.