Ms.Meenakshi Midha, Advocate v. UNITED INDIA INSURANCE COMPANY LTD. & ORS. .....

1. By the present appeal, the appellant Delhi Transport Corporation seeks to impugn the Award dated 13.12.2012

2. The brief facts which led to filing of the DAR before the Tribunal is that on 10.10.2012, a DTC bus was plying on route No.463. When it reached Batra Hospital, the driver collided the bus with a tree. Due to the accident, various passengers suffered injuries.

3. Based on the evidence on record, the Tribunal granted a compensation totalling Rs.2,72,600/- to 13 claimants. Various different amounts were awarded to different persons.

4. The Tribunal, however, noted that the Fitness Certificate given to the appellant’s vehicle had been withdrawn or suspended and hence directed the 2014:DHC:6189 Insurance Company i.e. respondent No.1 to pay the award amount but granted recovery rights against the appellant through respondent No.1/Insurance Company.

5. Learned counsel appearing for the appellant relies upon the judgment of the High Court dated 23rd April, 2012 titled `Delhi Transport Corporation & Ors. vs. National Insurance Company Limited and Anr.’ in MAC.APP. 361/2010 where this Court held that the only defence available to the Insurance Company is limited to the one as provided under Section 149(2) of the Motor Vehicles Act (the Act) and that non-possession of Fitness Certificate was not one of the grounds. He further submits that there is no breach of the terms and conditions of the Insurance policy.

6. Learned counsel appearing for the respondent No.1/Insurance Company has submitted that the judgment relied upon by the learned counsel for the appellant, namely D.T.C. vs. National Insurance Company(supra) is per incurium and has ignored various judgments of the Supreme Court. He further submits that the Certificate of Fitness having lapsed in terms of Section 56 of the Act, the permit under Section 80 as provided for under Section 24 of the Act would also lapse and in terms of the policy, the appellant did not have a valid permit on the date of the accident.

7. I may first look at the evidence on record. The accident in the present case took place on 10th October, 2012. The photocopy of the Fitness Certificate is on the record of the trial court and shows that the Fitness Certificate expired on 03.10.2012 i.e. about a week prior to the accident.

8. The respondent No.1 has led the evidence of R3W[1] Shri Vikas Negi. In his affidavit by way of evidence (Ex.R3W1/A) he has stated that the Investigating Officer verified the certificate of fitness of the insured vehicle. As per the certificate, this fitness was not valid on the date of the accident. He has exhibited the report of the authority as Ex.R3W1/2. Ex.R3W1/2 is a document without a heading. The registration of the bus is mentioned as DL 1P B-6765 which is the offending vehicle. At the bottom of this document, a stamp is affixed which reads as follows:- “VEHICLE FAILED Produce the vehicle after rectifying defects within 60 days of fresh receipt (fees) date vehicle not fit to ply on road”

9. In my view, the onus to prove that the fitness certificate had lapsed is on the respondent No.1/insurance company. Reference in this context may be had to the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Swaran Singh & Ors, (2004) 3 SCC 297. There in para 110, the Supreme Court held as follows:- “110 The summary of our findings to the various issues as raised in these petitions are as follows:- (i) … (ii) …

(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has 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 the 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. …..

(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.”

10. In view of the said judgment, the burden of proof is on respondent No.1/Insurance Company. The Insurance Company had not summoned the concerned officer from the Transport Authority to prove the lapse of the Fitness Certificate. The document Ex.R3W1/2 is a photocopy and cannot be relied upon. The stamp affixed says that the vehicle is to be produced within 60 days after removing the defects.

11. Neither of the parties know as to what happened after this so called document, if any, was generated. Further, doubt is thrown on the whole thing as the document is signed by Ashok Kumar, ATI on 10.10.2012 i.e. the date of the accident as well. In the absence of material facts on record, onus of which was on the respondent No.1/Insurance Company, in my view, there is no sufficient evidence on record to hold that there is a breach of the terms and conditions of the policy by the appellant.

12. In view of my finding on facts I see no need to go into the issue of the legal submission made by learned counsel for the parties in respect of the effect of a valid fitness certificate.

13. In the light of the facts, I modify the award of the Tribunal and hold that respondent No.1 would not be entitled to recovery rights against the appellant.