LIJU JOSE Vs. ANTO P IGNATIOUS

JUDGEMENT

(1.) The appellants are the owner and the driver of the vehicle which was involved in an accident. The person who was injured in the accident filed a claim petition in which an award was passed which is impugned herein. The Tribunal awarded an amount of Rs.46700/- with interest @8% per annum from 09.08.2004. The Tribunal also found violation of policy conditions insofar as the driver of the vehicle, the 1st respondent having no driving license and the offending vehicle involved in the accident having no fitness certificate. On the ground of violation of policy conditions, the Insurance Company was permitted recovery from the owner of the vehicle, but however was directed to pay the amount to the claimant. The right granted to the Insurance Company to recover the amount is challenged in the appeal.

(2.) The learned Counsel for the appellants submits that going by the decision in 2014(1)KLT 479 [Santhosh v. Binu] it was for the Insurance Company to prove the absence of the fitness certificate. Having gone through the decision this Court is unable to accept that there is any such proposition declared therein, relying on National Insurance Company Ltd. v. Swaran Singh ( 2004(1) KLT 781 (SC)).The Hon'ble Supreme Court in Swaran Singh (supra)was considering the various situations, with reference to the license of the driver of an offending vehicle, involved in an accident raised by the insurer as a defence under Section 149(2)(iii) to absolve themselves of the liability to indemnify the liability of the owner of that vehicle arising from an accident. The Court drew a difference between the words employed of 'effective license' and 'duly licensed' respectively in Section 3 and Section 149(2) of the Motor Vehicle Act. It was held that a penal provision vis a vis a provision beneficial to a third party, has to be interpreted differently; the latter liberally, avoiding a construction that would deny the benefit to the third party. Once there is a valid insurance cover proved, the breach alleged by the insurer has to be proved by the insurer. Five situations on the sole aspect of a driving license were enumerated viz: (1)no license held (b) Fake license, (c) expired license, (d) license for the type of vehicle not held and (e) holding a learners license. While in (d) and (e) the insurer was not held to be absolved in (c) it had to be examined whether the holder could have renewed the license without nothing more than a mere application. In any event (a),(b) and (c) though the drivers fault would all the same result in a breach alleged of the owner/insured and not of the driver. Hence it had to be established by the insurer that the vehicle was entrusted by the owner to the driver, with the full knowledge of the defect in license or without taking bonafide steps to verify the license, proving the breach alleged, was the dictum. Neither Swaran Singh nor Santhosh held that the absence of the driving license had to be proved by the insurer. Then the insurer would be obliged to prove the negative. In fact in Santhosh it was noticed that despite a direction of the Tribunal, on an application by the insurer, the owner and driver did not produce the license, enabling an adverse inference to be drawn. But the breach of policy conditions, which would absolve the liability of the insurer is that of the insured/owner. It is that breach the insurer in that case failed to establish.

(3.) The dictum has no application to the instant case where the breach alleged is the absence of 'fitness certificate' for the vehicle, which the owner himself had to obtain. The Hon'ble Supreme Court in Amrit Paul Singh and another v. Tata AIG Insurance Co.Ltd . and another (2018(7) SCC 558) held that the existence of a permit of any nature is a matter of documentary evidence and has to be brought on record by the insured, owner of the vehicle. Fitness certificate is also a document to be obtained by the owner of the vehicle, the non-production of which would prove the breach.