1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 20962 OF 2017
(Arising out of SLP(C) No.29032 of 2015)
PAPPU AND ORS. …..APPELLANT(S)
:Versus:
VINOD KUMAR LAMBA AND ANR. …..RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal questions the legality and tenability of the
judgment of the High Court of Judicature at Allahabad in First
Appeal from Order No.1138 of 2000, dated 9th October, 2014,
whereby the appeal filed by the appellants was dismissed by
the High Court whilst rejecting the only question raised before
it regarding absolving the Insurance Company (Respondent
No.2) from any liability in respect of truck bearing
No.DIL-5955, which was duly insured by respondent No.2
Insurance Company, on the ground that the same was not
driven by a person having a valid licence, as found by the
Motor Accident Claims Tribunal, District Allahabad in Claim
Petition No.215 of 1999.
2
2. In the claim petition it was asserted that on 12.08.1995
Om Prakash, son of Satku Lal, was driving Truck
No.URS-2735 when it was knocked down by a rashly and
negligently driven Truck No.DIL-5955 coming from the
opposite direction, as a result of which Om Prakash
succumbed to fatal injuries. The claim petition was filed by the
widow of deceased Om Prakash. Om Prakash left behind his
children Pappu, aged 16 years, Ramu, 12 years, Kumari
Geeta, 14 years, Kumari Neetu, 10 years, Kumari Guriya, 8
years and his mother, Smt. Shiv Rani, at the time of the
accident. The widow of deceased Om Prakash claimed
compensation of Rs.7 lakh under Fault Liability and
Rs.25,000/- under No Fault Liability. The mother of Om
Prakash claimed compensation of Rs.50,000/- separately. On
the date of the accident, Om Prakash was around 35 years of
age and was a driver by profession.
3. In the context of the sole contention raised before the
High Court and reiterated before this Court, it is not necessary
for us to dilate on factual aspects considered by the Tribunal
except to state that the Tribunal, on analysis of the evidence
on record, held that Om Prakash died because of the accident
3
caused by rash and negligent driving of Truck No.DIL-5955.
Although the Tribunal allowed the claim petition in part, it
absolved respondent No.2 Insurance Company by dismissing
the claim petition against the said respondent. The Tribunal
awarded a sum of Rs.25,000/- to opposite party No.3 Shiv
Rani and Rs.1,75,000/- to claimant Nos.1 to 6, with interest
at the rate of 12% per annum from the date of petition till the
date of payment. In other words, the claim petition was partly
allowed against respondent No.1 - the owner of the offending
vehicle DIL-5955.
4. In the appeal preferred by the appellants/claimants
against the said decision, the only question urged before the
High Court was about the correctness of the view taken by the
Tribunal in absolving the respondent No.2 Insurance
Company even though the offending Truck No.DIL-5955 was
duly insured by the said Insurance Company. The High Court
affirmed the view taken by the Tribunal that there was no
pleading or any evidence adduced by the owner of the
offending Truck to substantiate the fact that the Truck was
driven by one Joginder Singh, whose driving licence was
produced on record. The High Court also noted that there
4
could be no presumption that Joginder Singh was driving the
offending vehicle. The appellants have assailed the aforesaid
view taken by the Tribunal and affirmed by the High Court.
5. According to the appellants, the Insurance Company did
not produce any evidence before the Tribunal. As a result, it
was not open to the respondent No.2 Insurance Company to
extricate itself from the liability, having duly insured the
offending vehicle DIL-5955, which fact has been substantiated
by production of the Insurance Policy. A defence being
available to the Insurance Company, that the offending vehicle
was not driven by an authorised person and/or person not
having a valid driving licence, it was obligatory on the part of
the Insurance Company to substantiate that defence and more
so, to rebut the plea taken by the owner of the offending
vehicle that the offending vehicle was being driven by an
authorised person having a valid driving licence. To buttress
this argument, reliance has been placed on the decision of this
Court in the case of National Insurance Co. Ltd. Vs. Swarn
Singh and Ors.1
1
(2004) 3 SCC 297
5
6. We have heard Mr. Sharve Singh, learned counsel
appearing for the appellants and Mr. Rishi Malhotra, learned
counsel appearing for the Insurance Company.
7. In the context of the issue that arises for our
consideration, we may first advert to the claim petition. In the
claim petition, the name of the driver of the offending vehicle
DIL-5955 has not been mentioned. The assertion made in the
claim petition is that Truck No.URS-2735 driven by Om
Prakash was knocked down by the offending Truck
No.DIL-5955 coming from the opposite direction by rash and
negligent driving. The reply filed by respondent No.1 – owner
of the offending Truck DIL-5955 also does not mention the
name of the driver of the offending Truck No.DIL-5955.
Indeed, the reply filed by respondent No.1 asserts that the
vehicle No.DIL-5955 was comprehensively insured by the
respondent No.2 Insurance Company for unlimited liability.
The details of the Insurance Certificate have been mentioned
in the Written Statement. In paragraph 18 of the Written
Statement, however, a vague assertion has been made that on
the alleged date of incident, the offending vehicle DIL-5955
6
was plied by an authorised person having a valid driving
permit.
8. In the Written Statement filed by the respondent No.2
Insurance Company to oppose the claim petition, it is asserted
that the claimants should be put to strict proof about the
occurrence of the accident and other related matters. It is then
asserted that no insurance is directly issued by the Head
Office of respondent No.2. The name of the Branch Office by
which the vehicle in question was allegedly insured has not
been disclosed and in its absence, it was difficult to trace out
the insurance policy. Further, the original insurance policy
will have to be summoned from the Insurer or owner of the
vehicle. It is then asserted that neither has the alleged owner
of the vehicle (respondent No.1) informed about any claim nor
have the claimants made any claim to the Insurance
Company. As regards the plea taken by respondent No.1 -
owner of the offending vehicle, in paragraph 29 of the Written
Statement, it has been asserted by respondent No.2 as follows:
“29. That in petition anywhere or in column 16 of the
petition details or driving licence of the alleged driver are
not given and in absence of details it is quite impossible
for answering opposite party to ascertain the driving
licence and its validity on the alleged date of accident,
hence the driving licence if any and its validity on the
7
alleged date of accident is denied. The answering
opposite party could not be held liable for payment of
any award if made, unless it is proved that the vehicle
allegedly involved in the alleged accident was driving
under valid driving licence by its authorized driver with
due permission and under control of its owner and under
valid road, permit, fitness, road tax etc. as required
under the provisions of M.V. Act and also was driven
with full compliance of the terms and conditions of the
alleged insurance policy.”
It is not necessary to reproduce the other averments in the
Written Statement filed by respondent No.2.
9. On the basis of these pleadings, the matter proceeded
before the Tribunal. Admittedly, the respondent No.1 - owner
of the vehicle did not produce any evidence in support of his
plea taken in the Written Statement that the offending vehicle
was plied by an authorised person having a valid driving
permit. All that respondent No.1 did was to produce a driving
licence purportedly of one Joginder Singh. The Tribunal
adverted to the said driving licence but found that nowhere
the owner of the vehicle has asserted that the Truck
No.DIL-5955 was in fact driven by said Joginder Singh at the
time of the accident. On the basis of the pleadings, the
Tribunal framed issue No.3 and answered the same in favour
of the Insurance Company as follows:
8
“Issue No.3: Whether the Truck No. DIL-5955 was not
being driven by a person having valid and effective
driving licence?
As it has been stated earlier, that the owner of
Truck No. DIL-5955 has filed original driving licence of
one Joginder Singh but he has not mentioned anywhere
that Joginder Singh was driving his truck at the time of
accident. The owner has filed photo copy of insurance
policy in which at paragraph 5 proviso A, it is written
that the insurance company will be liable when driver
was holding a valid and effective driving licence. The
owner of the vehicle has not proved that his driver was
holding a valid and effective driving licence. This issue is
decided in the negative.”
10. This view taken by the Tribunal was assailed before the
High Court by the claimants. No other contention was raised
before the High Court except about the liability of the
Insurance Company. The High Court, after analysing the
record, negatived the said contention in the following words:
“5. The only question which has been raised before this
Court is, whether Insurance Company has rightly been
held not liable by holding that Truck No. DIL 5955 was
not being driven by a person having valid licence. This
Court has to consider, whether findings recorded in
respect of issue no.3 is correct or not.
6. Learned counsel for the appellants could not dispute
that neither any pleadings nor evidence have been led
before Tribunal to suggest or to tell, as a matter of fact,
that aforesaid truck was being driven by Sri Joginder
Singh. It is not in dispute that owner of aforesaid vehicle
produced driving licence which was in the name of Sri
Joginder Singh but at no stage it is pleaded or brought on
9
record before Tribunal that Sri Joginder Singh was the
person who was driving aforesaid Truck. This fact has
been noticed by Tribunal in the impugned order as under.
‘Joginder Singh Ko Prastut Kiya Gaya Hai Parantu
Joginder Singh Truck No. 5955 Ka Chalak Tha Yah Kahi
Par Bhi Nahi Kaha Gaya Hai.’
7. Learned counsel for the appellants could not dispute
this fact. In view of above statement of fact that it was
not pleaded or proved before Tribunal, the mere
production of driving licence of Sri Joginder Singh, by
owner of vehicle, cannot raise a presumption that he was
a person who was driving vehicle. The findings recorded
by Tribunal, therefore, cannot be faulted in any manner.
No other argument has been advanced.”
11. The question is: whether the fact that the offending
vehicle bearing No.DIL-5955 was duly insured by respondent
No.2 Insurance Company would per se make the Insurance
Company liable? This Court in the case of National
Insurance Co. Ltd. (supra), has noticed the defences available
to the Insurance Company under Section 149(2)(a)(ii) of the
Motor Vehicles 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 vehicle 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
10
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. 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
11
offending Truck was not enough for the 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.
12. In the present case, the Tribunal has accepted the claim
of the appellants. It has, however, absolved the respondent
No.2 Insurance Company from any liability for just reasons.
The High Court has also affirmed that view. It rightly held that
12
there can be no presumption that Joginder Singh was driving
the offending vehicle at the relevant time.
13. Be that as it may, no grievance about the quantum of
compensation awarded by the Tribunal has been made by the
appellants – claimants (either before the High Court or before
us in this appeal). Hence, that issue does not warrant any
scrutiny. Similarly, the owner of the vehicle (respondent No.1)
has not challenged the findings of the Tribunal as affirmed by
the High Court in favour of the insurer (respondent No.2),
including on the factum that the vehicle was driven by a
person who did not have a valid driving licence at the relevant
time.
14. The next question is: whether in the fact situation of this
case the insurance company can be and ought to be directed
to pay the claim amount, with liberty to recover the same from
the owner of the vehicle (respondent No.1)? This issue has
been answered in the case of National Insurance Company
Ltd. (supra). In that case, it was contended by the insurance
company that once the defence taken by the insurer is
accepted by the Tribunal, it is bound to discharge the insurer
and fix the liability only on the owner and/or the driver of the
13
vehicle. However, this Court held that even if the insurer
succeeds in establishing its defence, the Tribunal or the Court
can direct the insurance company to pay the award amount to
the claimant(s) and, in turn, recover the same from the owner
of the vehicle. The three-Judge Bench, after analysing the
earlier decisions on the point, held that there was no reason to
deviate from the said well-settled principle. In paragraph 107,
the Court then observed thus:
“We may, however, hasten to add that the Tribunal and
the court must, however, exercise their jurisdiction to
issue such a direction upon consideration of the facts
and circumstances of each case and in the event such a
direction has been issued, despite arriving at a finding of
fact to the effect that the insurer has been able to
establish that the insured has committed a breach of
contract of insurance as envisaged under sub-clause (ii)
of clause (a) of sub-section (2) of Section 149 of the Act,
the insurance company shall be entitled to realize the
awarded amount from the owner or driver of the vehicle,
as the case may be, in execution of the same award
having regard to the provisions of Sections 165 and 168
of the Act. However, in the event, having regard to the
limited scope of inquiry in the proceedings before the
Tribunal it has not been able to do so, the insurance
company may initiate a separate action therefor against
the owner or the driver of the vehicle or both, as the case
may be. Those exceptional cases may arise when the
evidence becomes available to or comes to the notice of
the insurer at a subsequent stage or for one reason or the
other, the insurer was not given an opportunity to defend
at all. Such a course of action may also be resorted to
when a fraud or collusion between the victim and the
owner of the vehicle is detected or comes to the
knowledge of the insurer at a later stage.”
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Further, in paragraph No.110, the Court observed thus:
110. The summary of our findings to the various issues
as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third party
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) Insurer is entitled to raise a defence in a claim petition
filed under Section 163A or Section 166 of the Motor
Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)
(ii) of the said Act.
(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 where for would be on
them.
(v) The court cannot lay down any criteria as to how said
burden would be discharged, inasmuch as the same
would depend upon the facts and circumstance of each
case.
15
(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 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 insured under Section 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 fulfil the requirements of law or not will have to
be determined in each case.
(viii) xxx
(ix) xxx
(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 Section 149(2)
read with Sub-section (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 under Section
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 Sub-section
(3) of Section 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 Sub-section (4) with
proviso thereunder and Sub-section (5) which are
16
intended to cover specified contingencies
mentioned therein to enable the insurer to recover
amount paid under the contract of insurance on
behalf of the insured can be taken recourse of by
the Tribunal and be extended to claims and
defences of insurer against insured 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.”
(emphasis supplied)
15. In the present case, the owner of the vehicle (respondent
No.1) had produced the insurance certificate indicating that
vehicle No. DIL- 5955 was comprehensively insured by the
respondent No.2 (Insurance Company) for unlimited liability.
Applying the dictum in the case of National Insurance
Company Ltd. (supra), to subserve the ends of justice, the
insurer (respondent No.2) shall pay the claim amount awarded
by the Tribunal to the appellants in the first instance, with
liberty to recover the same from the owner of the vehicle
(respondent No.1) in accordance with law.
16. Accordingly, the appeal is allowed to the extent that the
compensation amount awarded by the Tribunal and confirmed
by the High Court shall be paid and satisfied by the insurer
(respondent No.2) in the first instance, with liberty to recover
17
the same from the owner of the vehicle (respondent No.1) in
accordance with law.
17. Appeal is disposed of in the aforementioned terms with
no order as to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
January 19, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 20962 OF 2017
(Arising out of SLP(C) No.29032 of 2015)
PAPPU AND ORS. …..APPELLANT(S)
:Versus:
VINOD KUMAR LAMBA AND ANR. …..RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal questions the legality and tenability of the
judgment of the High Court of Judicature at Allahabad in First
Appeal from Order No.1138 of 2000, dated 9th October, 2014,
whereby the appeal filed by the appellants was dismissed by
the High Court whilst rejecting the only question raised before
it regarding absolving the Insurance Company (Respondent
No.2) from any liability in respect of truck bearing
No.DIL-5955, which was duly insured by respondent No.2
Insurance Company, on the ground that the same was not
driven by a person having a valid licence, as found by the
Motor Accident Claims Tribunal, District Allahabad in Claim
Petition No.215 of 1999.
2
2. In the claim petition it was asserted that on 12.08.1995
Om Prakash, son of Satku Lal, was driving Truck
No.URS-2735 when it was knocked down by a rashly and
negligently driven Truck No.DIL-5955 coming from the
opposite direction, as a result of which Om Prakash
succumbed to fatal injuries. The claim petition was filed by the
widow of deceased Om Prakash. Om Prakash left behind his
children Pappu, aged 16 years, Ramu, 12 years, Kumari
Geeta, 14 years, Kumari Neetu, 10 years, Kumari Guriya, 8
years and his mother, Smt. Shiv Rani, at the time of the
accident. The widow of deceased Om Prakash claimed
compensation of Rs.7 lakh under Fault Liability and
Rs.25,000/- under No Fault Liability. The mother of Om
Prakash claimed compensation of Rs.50,000/- separately. On
the date of the accident, Om Prakash was around 35 years of
age and was a driver by profession.
3. In the context of the sole contention raised before the
High Court and reiterated before this Court, it is not necessary
for us to dilate on factual aspects considered by the Tribunal
except to state that the Tribunal, on analysis of the evidence
on record, held that Om Prakash died because of the accident
3
caused by rash and negligent driving of Truck No.DIL-5955.
Although the Tribunal allowed the claim petition in part, it
absolved respondent No.2 Insurance Company by dismissing
the claim petition against the said respondent. The Tribunal
awarded a sum of Rs.25,000/- to opposite party No.3 Shiv
Rani and Rs.1,75,000/- to claimant Nos.1 to 6, with interest
at the rate of 12% per annum from the date of petition till the
date of payment. In other words, the claim petition was partly
allowed against respondent No.1 - the owner of the offending
vehicle DIL-5955.
4. In the appeal preferred by the appellants/claimants
against the said decision, the only question urged before the
High Court was about the correctness of the view taken by the
Tribunal in absolving the respondent No.2 Insurance
Company even though the offending Truck No.DIL-5955 was
duly insured by the said Insurance Company. The High Court
affirmed the view taken by the Tribunal that there was no
pleading or any evidence adduced by the owner of the
offending Truck to substantiate the fact that the Truck was
driven by one Joginder Singh, whose driving licence was
produced on record. The High Court also noted that there
4
could be no presumption that Joginder Singh was driving the
offending vehicle. The appellants have assailed the aforesaid
view taken by the Tribunal and affirmed by the High Court.
5. According to the appellants, the Insurance Company did
not produce any evidence before the Tribunal. As a result, it
was not open to the respondent No.2 Insurance Company to
extricate itself from the liability, having duly insured the
offending vehicle DIL-5955, which fact has been substantiated
by production of the Insurance Policy. A defence being
available to the Insurance Company, that the offending vehicle
was not driven by an authorised person and/or person not
having a valid driving licence, it was obligatory on the part of
the Insurance Company to substantiate that defence and more
so, to rebut the plea taken by the owner of the offending
vehicle that the offending vehicle was being driven by an
authorised person having a valid driving licence. To buttress
this argument, reliance has been placed on the decision of this
Court in the case of National Insurance Co. Ltd. Vs. Swarn
Singh and Ors.1
1
(2004) 3 SCC 297
5
6. We have heard Mr. Sharve Singh, learned counsel
appearing for the appellants and Mr. Rishi Malhotra, learned
counsel appearing for the Insurance Company.
7. In the context of the issue that arises for our
consideration, we may first advert to the claim petition. In the
claim petition, the name of the driver of the offending vehicle
DIL-5955 has not been mentioned. The assertion made in the
claim petition is that Truck No.URS-2735 driven by Om
Prakash was knocked down by the offending Truck
No.DIL-5955 coming from the opposite direction by rash and
negligent driving. The reply filed by respondent No.1 – owner
of the offending Truck DIL-5955 also does not mention the
name of the driver of the offending Truck No.DIL-5955.
Indeed, the reply filed by respondent No.1 asserts that the
vehicle No.DIL-5955 was comprehensively insured by the
respondent No.2 Insurance Company for unlimited liability.
The details of the Insurance Certificate have been mentioned
in the Written Statement. In paragraph 18 of the Written
Statement, however, a vague assertion has been made that on
the alleged date of incident, the offending vehicle DIL-5955
6
was plied by an authorised person having a valid driving
permit.
8. In the Written Statement filed by the respondent No.2
Insurance Company to oppose the claim petition, it is asserted
that the claimants should be put to strict proof about the
occurrence of the accident and other related matters. It is then
asserted that no insurance is directly issued by the Head
Office of respondent No.2. The name of the Branch Office by
which the vehicle in question was allegedly insured has not
been disclosed and in its absence, it was difficult to trace out
the insurance policy. Further, the original insurance policy
will have to be summoned from the Insurer or owner of the
vehicle. It is then asserted that neither has the alleged owner
of the vehicle (respondent No.1) informed about any claim nor
have the claimants made any claim to the Insurance
Company. As regards the plea taken by respondent No.1 -
owner of the offending vehicle, in paragraph 29 of the Written
Statement, it has been asserted by respondent No.2 as follows:
“29. That in petition anywhere or in column 16 of the
petition details or driving licence of the alleged driver are
not given and in absence of details it is quite impossible
for answering opposite party to ascertain the driving
licence and its validity on the alleged date of accident,
hence the driving licence if any and its validity on the
7
alleged date of accident is denied. The answering
opposite party could not be held liable for payment of
any award if made, unless it is proved that the vehicle
allegedly involved in the alleged accident was driving
under valid driving licence by its authorized driver with
due permission and under control of its owner and under
valid road, permit, fitness, road tax etc. as required
under the provisions of M.V. Act and also was driven
with full compliance of the terms and conditions of the
alleged insurance policy.”
It is not necessary to reproduce the other averments in the
Written Statement filed by respondent No.2.
9. On the basis of these pleadings, the matter proceeded
before the Tribunal. Admittedly, the respondent No.1 - owner
of the vehicle did not produce any evidence in support of his
plea taken in the Written Statement that the offending vehicle
was plied by an authorised person having a valid driving
permit. All that respondent No.1 did was to produce a driving
licence purportedly of one Joginder Singh. The Tribunal
adverted to the said driving licence but found that nowhere
the owner of the vehicle has asserted that the Truck
No.DIL-5955 was in fact driven by said Joginder Singh at the
time of the accident. On the basis of the pleadings, the
Tribunal framed issue No.3 and answered the same in favour
of the Insurance Company as follows:
8
“Issue No.3: Whether the Truck No. DIL-5955 was not
being driven by a person having valid and effective
driving licence?
As it has been stated earlier, that the owner of
Truck No. DIL-5955 has filed original driving licence of
one Joginder Singh but he has not mentioned anywhere
that Joginder Singh was driving his truck at the time of
accident. The owner has filed photo copy of insurance
policy in which at paragraph 5 proviso A, it is written
that the insurance company will be liable when driver
was holding a valid and effective driving licence. The
owner of the vehicle has not proved that his driver was
holding a valid and effective driving licence. This issue is
decided in the negative.”
10. This view taken by the Tribunal was assailed before the
High Court by the claimants. No other contention was raised
before the High Court except about the liability of the
Insurance Company. The High Court, after analysing the
record, negatived the said contention in the following words:
“5. The only question which has been raised before this
Court is, whether Insurance Company has rightly been
held not liable by holding that Truck No. DIL 5955 was
not being driven by a person having valid licence. This
Court has to consider, whether findings recorded in
respect of issue no.3 is correct or not.
6. Learned counsel for the appellants could not dispute
that neither any pleadings nor evidence have been led
before Tribunal to suggest or to tell, as a matter of fact,
that aforesaid truck was being driven by Sri Joginder
Singh. It is not in dispute that owner of aforesaid vehicle
produced driving licence which was in the name of Sri
Joginder Singh but at no stage it is pleaded or brought on
9
record before Tribunal that Sri Joginder Singh was the
person who was driving aforesaid Truck. This fact has
been noticed by Tribunal in the impugned order as under.
‘Joginder Singh Ko Prastut Kiya Gaya Hai Parantu
Joginder Singh Truck No. 5955 Ka Chalak Tha Yah Kahi
Par Bhi Nahi Kaha Gaya Hai.’
7. Learned counsel for the appellants could not dispute
this fact. In view of above statement of fact that it was
not pleaded or proved before Tribunal, the mere
production of driving licence of Sri Joginder Singh, by
owner of vehicle, cannot raise a presumption that he was
a person who was driving vehicle. The findings recorded
by Tribunal, therefore, cannot be faulted in any manner.
No other argument has been advanced.”
11. The question is: whether the fact that the offending
vehicle bearing No.DIL-5955 was duly insured by respondent
No.2 Insurance Company would per se make the Insurance
Company liable? This Court in the case of National
Insurance Co. Ltd. (supra), has noticed the defences available
to the Insurance Company under Section 149(2)(a)(ii) of the
Motor Vehicles 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 vehicle 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
10
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. 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
11
offending Truck was not enough for the 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.
12. In the present case, the Tribunal has accepted the claim
of the appellants. It has, however, absolved the respondent
No.2 Insurance Company from any liability for just reasons.
The High Court has also affirmed that view. It rightly held that
12
there can be no presumption that Joginder Singh was driving
the offending vehicle at the relevant time.
13. Be that as it may, no grievance about the quantum of
compensation awarded by the Tribunal has been made by the
appellants – claimants (either before the High Court or before
us in this appeal). Hence, that issue does not warrant any
scrutiny. Similarly, the owner of the vehicle (respondent No.1)
has not challenged the findings of the Tribunal as affirmed by
the High Court in favour of the insurer (respondent No.2),
including on the factum that the vehicle was driven by a
person who did not have a valid driving licence at the relevant
time.
14. The next question is: whether in the fact situation of this
case the insurance company can be and ought to be directed
to pay the claim amount, with liberty to recover the same from
the owner of the vehicle (respondent No.1)? This issue has
been answered in the case of National Insurance Company
Ltd. (supra). In that case, it was contended by the insurance
company that once the defence taken by the insurer is
accepted by the Tribunal, it is bound to discharge the insurer
and fix the liability only on the owner and/or the driver of the
13
vehicle. However, this Court held that even if the insurer
succeeds in establishing its defence, the Tribunal or the Court
can direct the insurance company to pay the award amount to
the claimant(s) and, in turn, recover the same from the owner
of the vehicle. The three-Judge Bench, after analysing the
earlier decisions on the point, held that there was no reason to
deviate from the said well-settled principle. In paragraph 107,
the Court then observed thus:
“We may, however, hasten to add that the Tribunal and
the court must, however, exercise their jurisdiction to
issue such a direction upon consideration of the facts
and circumstances of each case and in the event such a
direction has been issued, despite arriving at a finding of
fact to the effect that the insurer has been able to
establish that the insured has committed a breach of
contract of insurance as envisaged under sub-clause (ii)
of clause (a) of sub-section (2) of Section 149 of the Act,
the insurance company shall be entitled to realize the
awarded amount from the owner or driver of the vehicle,
as the case may be, in execution of the same award
having regard to the provisions of Sections 165 and 168
of the Act. However, in the event, having regard to the
limited scope of inquiry in the proceedings before the
Tribunal it has not been able to do so, the insurance
company may initiate a separate action therefor against
the owner or the driver of the vehicle or both, as the case
may be. Those exceptional cases may arise when the
evidence becomes available to or comes to the notice of
the insurer at a subsequent stage or for one reason or the
other, the insurer was not given an opportunity to defend
at all. Such a course of action may also be resorted to
when a fraud or collusion between the victim and the
owner of the vehicle is detected or comes to the
knowledge of the insurer at a later stage.”
14
Further, in paragraph No.110, the Court observed thus:
110. The summary of our findings to the various issues
as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third party
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) Insurer is entitled to raise a defence in a claim petition
filed under Section 163A or Section 166 of the Motor
Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)
(ii) of the said Act.
(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 where for would be on
them.
(v) The court cannot lay down any criteria as to how said
burden would be discharged, inasmuch as the same
would depend upon the facts and circumstance of each
case.
15
(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 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 insured under Section 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 fulfil the requirements of law or not will have to
be determined in each case.
(viii) xxx
(ix) xxx
(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 Section 149(2)
read with Sub-section (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 under Section
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 Sub-section
(3) of Section 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 Sub-section (4) with
proviso thereunder and Sub-section (5) which are
16
intended to cover specified contingencies
mentioned therein to enable the insurer to recover
amount paid under the contract of insurance on
behalf of the insured can be taken recourse of by
the Tribunal and be extended to claims and
defences of insurer against insured 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.”
(emphasis supplied)
15. In the present case, the owner of the vehicle (respondent
No.1) had produced the insurance certificate indicating that
vehicle No. DIL- 5955 was comprehensively insured by the
respondent No.2 (Insurance Company) for unlimited liability.
Applying the dictum in the case of National Insurance
Company Ltd. (supra), to subserve the ends of justice, the
insurer (respondent No.2) shall pay the claim amount awarded
by the Tribunal to the appellants in the first instance, with
liberty to recover the same from the owner of the vehicle
(respondent No.1) in accordance with law.
16. Accordingly, the appeal is allowed to the extent that the
compensation amount awarded by the Tribunal and confirmed
by the High Court shall be paid and satisfied by the insurer
(respondent No.2) in the first instance, with liberty to recover
17
the same from the owner of the vehicle (respondent No.1) in
accordance with law.
17. Appeal is disposed of in the aforementioned terms with
no order as to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
January 19, 2018.
