JUDGMENT
Mansoor Ahmad Mir, J.
1. This Letters Patent Appeal is directed against the Judgment dated 9.10.2002 passed in CIMA No. 8 of 2000, dismissing the appeal filed by the appellant herein against the award dated 31.12.1999 passed by Motor Accidents Claims Tribunal, Pulwama (for short Tribunal) in claim petition No. 2 of 1997 titled jameela and Ors. v. Mohammad Sidiq Kochay and Ors.
2. It is profitable to notice the brief facts of the case herein.
Claimants–legal heirs of the deceased namely Abdul Gani Shah, filed claim petition before the learned Tribunal on 29.4.1997 on the ground that respondent No. 1. Mahammad Sidiq Kuchay, driver of the offending vehicle was driving the vehicle – passenger bus bearing registration No. 141-JKE on 10.04.1997, rashly and negligently and hit the deceased Abdul Ganai Shah at Sambora, Pulwama, who later on succumbed to the injuries. Claim petition came to be resisted by the appellant–non-applicant No. 3 (insurer) before the learned Tribunal, on the ground that the driver–respondent No. 1 was having effective/valid driving licence to ply only heavy motor vehicles and not the passenger motor vehicles. This objection has been taken by the insurer–appellant in para 3 of the preliminary objections filed to the claim petition. There-after following three issues came to be framed vide order dated 20.8.1998:
1. Whether the accident took place due to carelessness and negligence of respondent No. I? OPP
2. In case issue No. 1 is proved affirmative to what extent of compensation, the petitioners are entitled to and from whom? OPP.
3. Whether the respondent No. 1 was holding a valid driving licence at the time of accident? OPR3.
3. The appellant–insurer had to discharge the onus of issue No. 3. The appellant examined only one witness namely Mohammad Ashraf in support of his defence. The learned Tribunal after hearing arguments held that the appellant–insurer has failed to discharge the onus and returned a finding on issue No. 3 in favour of the claimants and against it, accordingly saddled the appellant–insurer with the liability, vide award dated 31.12.1999.
4. Feeling aggrieved, the appellant insurer preferred appeal against the award before this Court, which came to be dismissed vide impugned judgement. Feeling aggrieved, the appellant preferred this letters patent appeal. At the motion stage, notice came to be issued only to respondent No. 2–owner of the offending vehicle. There-after appeal came to be admitted only vis-a-vis respondent No. 2 and dismissed vis-a-vis respondent No. 1 and 3 to 6, vide Order dated 2.8.2003.
5. The crux of the matter is whether appellant has pleaded and proved that the driver of the offending vehicle was not having valid/effective licence on the date of accident viz. 10-4-1997; whether that was the cause of accident and whether the insured–owner had committed willful breach?
6. At the cost of repetition, appellant-insurer has taken only one objection i.e. that the driver of the offending vehicle was competent to drive only heavy motor vehicle and not the passenger motor vehicle for the reason that his licence was not carrying endorsement of Passenger Service Vehicle “PSV”. It is worthwhile to mention here that the appellant has not taken any objection in the written statement vis-a-vis expiry of the validity period of the licence. However, this Court vide order dated 12.8.2005 held that the objection regarding “validity of the driving licence” included both the points viz. expiry of validity period of the licence and absence of PSV endorsement on it. In this view of the matter, I deem it proper to deal with the question, as to whether appellant–insurer has discharged the onus and proved the questions framed hereinabove?
7. As mentioned above, the appellant has examined only one witness in support of its defence namely, Mohammad Ashraf, who has stated that the driving licence was issued in favour of the driver in the year 1991 and verification report came to be marked as EXPR-I. He further stated that driving licence was not carrying “PSV” endorsement. In cross examination, he has stated that the record was being maintained by the SSP, Traffic and not by his office. It is not mandatory that driving licence must carry “PSV” endorsement. He has further stated as per records, the driving licence issued in favour of the driver is valid one. The appellant–insurer has not led any evidence in order to establish and prove that the licence had expired at the relevant point of time i.e. 10.4.1997 and has lost its effect. The appellant has also failed to prove that the driver of the offending vehicle was competent to drive only one kind of vehicle, but has driven on the date of accident another kind of vehicle, was the main or contributory cause of accident.
8. In terms of mandate of Section 149 of the Motor Vehicles Act, 1988, the insurer can only raise limited defence prescribed and enumerated in the section. It cannot avoid liability on any other ground, but it has to plead, establish and prove defence available and raised by it. It has also to prove that the breach committed by the owner–insured was willful and was the cause of the accident. The Apex Court in case Punam Devi v. Divisional Manager has held that if the insurer fails to discharge burden of proof, it has to be saddled with liability. It is profitable to reproduce para 2 of the said Judgment hereunder”.
In National Insurance Co. Ltd. Chandigarh v. Nicollctta Rohtagt and Ors. , it was held that the insurance company cannot challenge the quantum of compensation awarded by the Tribunal. The only ground open to insurer is contained in Section 149(2) of the Motor Vehicles Act. In National Insurance Co. Ltd. v. Sivaran Singh and Ors. , this Court has held that “mere absence, take or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third party. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence or 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”, In the present case, the insurer has not led any evidence that the driver of the vehicle had no licence. The burden of proof that the driver had no licence was open to the insurer which it failed to discharge.
9. Applying the test laid down by the Apex Court to be instant case, the appellant-insurer has failed to discharge the onus as discussed hereinabove.”
10. The Apex Court also in a leading case titled National Insurance Co. v. Sioaran Singh held that if driver is competent to drive one type of vehicle and was driving another type of vehicle at the time of accident, the insurer has to prove by leading evidence before the Court that, it was the main or contributory cause of accident. It is profitable to reproduce a portion of para 84 of the said judgement, so far it is relevant for the present, hereunder:
In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
11. In Swaran Singh’s case (supra), the Apex Court has laid down test when and how insurer can avoid liability. It is profitable to reproduce para 105 (iii)(iv) and (vi) herein:
(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 defenses 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.
The surance 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 insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the drivel 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.
12. As discussed above, there is nothing on the file to show that the insurer has pleaded and proved before the learned Tribunal that the insured was guilty of negligence and has committed any willful breach. Applying the test laid down by the Apex Court in the Judgment supra, the appellant cannot avoid its liability.
13. This controversy also came up for consideration before this Court in case National Insurance of Co. Ltd. v. Abdul Gaffar Pandith 2004 (II) SLJ 692 and came to be rightly turned down in the following terms:
In the recent case of National Insurance Co. Ltd. v. Swaran Singh and Ors. , a three Judge Bench of the Apex Court has held that breach of policy condition for example, disqualification of driver or invalid driving licence of the driver has to be proved to have been committee by the insured by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured of 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 of duly licenced driver or one who was not disqualified to drive at the relevant time. Thus, the Insurance Company must not only prove, as a part of its defence, that the person driving the vehicle was disqualified or that he did not hold a valid driving license, it is also required to establish that the insured i.e. the owner of the vehicle had made positive breach of the condition. As a matter of fact, the Supreme Court to the extent of holding that where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license 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 breachers of the condition of driving license is/are so fundamental and bound to have contributed to be cause of accident.
14. Dealing with the second argument raised by learned Counsel for the appellant that the driving licence of the driver was not having PSV endorsement which was mandatory in terms of Rule 4(1)(a), of the Jammu and Kashmir Motor Vehicle Rules, the appellant has examined Mohammad Ashraf Wani as his witness who has categorically deposed that the driver was having valid driving licence and was competent to drive vehicles falling under category (c) to (e) mentioned in the driving licence. While spelling out classification of vehicles (c) to (e), he has stated that the licence was issued for driving heavy transport vehicle (goods), Light Motor Vehicles (LMV) Middle Goods Vehicle (MCV).
15. It is worth while no mention here that in terms of order of this Court dated 12.8.2005, respondent No. 2 has placed on file by the medium of CMP No. 278/2007, a communication which appears to have been issued by the licensing authority, which also indicate that the driver was having licence and entitled to drive all types of vehicles–(c) to (e).
16. Claimants have also examined in support of their case one Abid Kounsar, Sub-Inspector who was manning the post of SHO P/S Kothibagh, at the relevant point of time. He has stated that he had conducted in investigation of FIR No. 136/1997, relating to the accident and has found driver prima facie involved in the commission of the offences punishable under Sections 304A and 279 RPC. He further stated that during investigation, he has seized documents of the vehicle including driving licence. In cross examination, he has deposed that the driving licence was valid one and was found genuine and valid as per records and entries.
17. The question now arises as to whether the driver who possessed driving licence for driving abovementioned vehicles, could he drive a passenger vehicle? The answer, I find, in the Judgment passed by this Court in case titled National Insurance Co. Ltd. v. Irfan Sidiq Bhnt 2004 (II) SLJ 623, wherein it is held that Light Motor Vehicle includes transport vehicle and transport vehicle includes public service vehicle and public service vehicle includes any motor vehicle used of deemed to be used for carriage of passengers. Further held, that the authorization of having PSV endorsement in terms of Rule 41(a) of the Rules is not required in the given circumstances. It is profitable to reproduce paras 13 and 17 of the Judgment hereunder:
13. A combined reading of the above provisions leaves no room for doubt that by virtue of licence, about which there is no dispute, both Showkat Ahmad and Zahoor Ahmad were competent in terms of Section 3 of the Motor Vehicles Act to drive a public service vehicle without any PSV endorsement and express authorization in terms of Rule 4(1)(a) of the State Rules. In order words, the requirement of the State Rules stood satisfied.
…
17. In the case of Mohammad Aslam Khan CIMA No. 87 of 2002 Peerzada Noor-ud-Din appearing as witness on behalf of Regional Transport Officer did say on recall for further examination that PSV endorsement oil the licence of Zahoor Ahmad was fake. In our opinion, the fact that the PSV endorsement on the licence was fake is not at all material, for, even if the claim is considered on the premise that there was no PSV endorsement on the licence, for the reasons stated above, it would not materially affect the claim. By virtue of “C to E” licence Showkat Ahmad was competent to drive a passenger vehicle. In fact, there is no separate definition of passenger vehicle or passenger service vehicle in the Motor Vehicles Act. They come within the ambit of public service vehicle under Section 2(35). A holder of driving licence with respect to “light Motor Vehicle”, is thus competent to drive any motor vehicle used or adapted to be used for carriage of passengers i.e. a public service vehicle.
18. In the given circumstances of the case PSV endorsement was not required at all.
19. Learned Counsel for the appellant heavily relied upon a Judgment of the Apex Court reported as 2006 (4) SCC 250. Keeping in view the peculiar facts and circumstances of the case, this Judgment is also of no help to the appellant.
20. Having glance of the above discussions, I am of the considered view that the Tribunal as well as the 1st, Appellate Court have not committed any error in returning their findings. Accordingly, award of the learned Tribunal and impugned Judgment of first appellate Court are upheld. Appeal is accordingly dismissed. There shall be no order as to costs.
