JUDGMENT
M.M. Kumar, J.
1. The Insurance Company is in appeal, challenging the award dated 20.12.2005 passed by the Motor Accident Claims Tribunal, Yamuna Nagar (for brevity, “the Tribunal”). The Tribunal has recorded a categorical finding that accident had taken place on 12.2.2004 due to rash and negligent driving of the offending Bus No. HR-45-5480 by its driver Palia Ram. The contention to the contrary that there was a contributory negligence on the part of the motor-cyclist, the deceased, has not been accepted by the Tribunal. The defence of false implication of driver has also not been accepted. It has further been found that the motor-cyclist, namely, Ravinder Kumar, has died in the afore-mentioned accident. There was a controversy with regard to the validity of the driving licence and its renewal. The Insurance Company has argued that the driving licence has expired on 23.10.2003 i.e., much before the date of accident on 12.2.2004. It was pointed out that the driving was renewed with effect from 14.9.2005 to 13.9.2008. However, it was submitted on behalf of the driver as well as the owner that the driving licence was renewed from the back date and the Tribunal has recorded a categorical finding that the appellant-Insurance Company has ailed to prove on record that the application for renewal of the licence has not been filed before the expiry of 30 days despite a specific issue placing onus on the appellant-Insurance Company. It has been held that in these circumstances although the driving licence was not renewed on the date of accident, yet there was no violation of terms and conditions of the insurance policy by the driver and the owner. The views of the ‘Tribunal’ are discernible from para 21 of the Award and the same reads as under:
After hearing the learned Counsel for the respondents, I am of the considered view that the respondent No. 3 Insurance Company cannot be exonerated from its liability to a compensate the claimants because firstly, it is not proved on the file that the application for renewal of the licence was moved by the respondent No. 1 after 30 days of its expiry and secondly, even if the driving licence was not renewed on the date of accident then also there is no violation of terms and conditions of the Insurance Policy by respondent No. 1 and 2. In these circumstances, all the respondents i.e. respondent Nos. 1 being driver, respondent No. 2 being owner and respondent No. 3 being insurer of the bus are jointly and severally liable to make payment of the compensation amount.
The ‘Tribunal’ further found that monthly income of deceased Ravinder Kumar could be taken as Rs. 2400/- P.M. on the basis of minimum wages. In that regard the Tribunal has concluded as under:
Keeping in view the minimum wages, the monthly income of Ravinder Kumar can be taken as Rs. 2,400/- per month, out of which he was supposed to spend 1/3rd on his own expenses and thus monthly dependency comes to Rs. 19,200/-. Taking into consideration the age of claimants as 45 years, as such a suitable multiplier of 13 is justified. While applying the said multiplier, the total compensation on account of dependency comes to Rs. 2,49,600/-. In addition to it, the claimants are also entitled to a sum of Rs. 3,000/- on account of funeral expenses of the deceased Ravinder Kumar and they are further entitled to sum of Rs. 2,500/- on account of loss of estate. Thus, a just, fair and reasonable total compensation amount which can be awarded to the petitioners is assessed as follows:
i) Compensation on account of dependency 2,49,600.00
ii) Compensation on account of funeral expenses 3,000.00
iii) Compensation on account of loss 2,500.00
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TOTAL 2,55,100.00
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(Rounded to Rs. 2,55,00.00).
2. Mr. Suman Jain, learned Counsel for the appellant, has argued that the driving licence has been renewed with effect from 14,.9.2005 and not from the date it had expired i.e. 23.10.2003. On that basis, learned Counsel wanted us to presume that the application must have been filed after the expiry of 30 days because otherwise the driving licence would have been renewed from the date it expired. Learned Counsel has placed reliance on the judgment of the Supreme Court in the case of National Insurance Co. v. Jarnail Singh and Ors. (Civil Appeal No. 7244 of 2001, decided on October 17, 2001) and argued that the afore-mentioned judgment substantially support the contention raised by him.
3. Having heard the learned Counsel, we are of the view that no interference of this Court, in exercise of jurisdiction under Section 173 of the Motor Vehicles Act, 1988, would be warranted because the Insurance Company has failed to prove that the application for renewal of the driving licence was not filed within 30 days of the expiry of the driving licence. There is specific issue carved out being Issue No. 4 concerning renewal of driving licence and the burden to prove the issue has been placed on appellant-Insurance Company. The Insurance Company-appellant could have easily called for the record of the Licensing Authority and could have proved the afore-mentioned issue. The failure of the appellant-Insurance Company may result in raising of an inference against it. Moreover, such a non-renewal of driving licence did not contribute to causing of accident which was also required to be shown by the appellant-Insurance Company. In that regard, reliance may be placed on Section 149(2) of the Act as construed by the Supreme Court in the case of National Insurance Co. v. Swaran Singh . A three-judge Bench of Hon’ble Supreme Court in Swaran Singh’s case (Supra), after detailed discussion in paras 40-50, has recorded the conclusions in this respect in para 108 (vi) of its judgment, which reads as under:
(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 Tribunal 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 under Section 149(2) of the Act.
The law as laid down in Swaran Singh’s case (supra) must be followed because the supporting rationable discernible from paras 40 to 50 of the judgment is that the language of Section 149(2) of the Act in contra distinction to other sections like Section 3, proviso to Sections 14, 15 and 19 to 24, have been found to be entirely different. It has been further held that Section 3 uses the expression ‘effective licence’ which is different than the expression ‘duly licenced’ used in Section 149(2) of the Act. Therefore, Hon’ble the Supreme Court has held that an Insurance Company would not be allowed to avoid its liability towards the insured unless the breach is so fundamental which has contributed to the cause of accident.
4. The judgment of the Supreme Court in Jarnail Singh’s case (supra) has been delivered by a Bench of two Judges and is earlier in point of time. Moreover, this judgment does not refer to various provisions of the Act as has been discussed in greater details in the later judgment of the Hon’ble Supreme Court in Swaran Singh’s case (supra) by a three Judges’ Bench. On the basis of the principles concerning precedents, we are inclined to follow the later and more authoritative judgment in Swaran Singh’s case (supra). Therefore, there is no merit in this appeal and the same is dismissed.
