Insurers must demonstrate that any breach of policy conditions was fundamental to the accident to deny liability; absence of mandatory skills test for hill endorsements invalidates claims of driver disqualification.

JUDGMENT

Najmi Waziri, J. (Oral)--These appeals impugn the award of compensation dated 16.07.2016, passed by the learned MACT in Suit Nos. 305/11, 307/11, 308/11, 309/11, 306/11, 310/11, 21/16 and 190/11, 191/11, 192/11, 193/11, 194/11, 195/11, 196/11, 279/11, 280/11, 322/11, 323/11, 324/11, 325/11, 326/11,457/11, 257/11, 259/11, 260/11, 456/11, 657/11, 658/11 & 390/11, on the ground that the right of recovery against the owner and driver of the vehicle has not been granted. The quantum of compensation has not been challenged. Indeed the compensation stands duly paid to the claimants.

2. A passenger bus packed to the capacity, was carrying passengers who in pious fervour, were on a pilgrimage from Delhi to Katra. Closer to the destination, when the bus entered hilly areas, it slipped into a ravine, resulting in the death of 13 passengers and serious injuries to 24 others.

3. The accident occurred on 20.06.2007. Almost a decade later, by an Award dated 16.07.2016, the learned Tribunal awarded the compensation to the victims. However, it declined rights of recovery to the insurer on the ground that the owner of the vehicle had proven that, he had engaged the driver of the vehicle after having duly satisfied himself, that the licence shown to him by the driver appeared to be valid and that the driver possessed requisite skills to drive the said insured vehicle.

4. The learned Tribunal had relied upon various judicial precedents, including National Insurance Company Ltd. vs. Anjana Shyam & Ors., IV (2007) ACC 355 (SC); MAC APP. 172/2011; National Insurance Co. Ltd. v. Prakash Chand & Ors. decided on 9th January, 2015; Sardari & Ors. v. Sushil Kumar & Ors., II (2008) ACC 426 (SC); New India Assurance Co. Ltd. v. Kusum & Ors., II (2010) ACC 518 (SC) and United India Insurance Co. ltd. v. Sujata Arora and Others, 2013 ACJ 2129.

5. The insurer had contended that, in the first instance the driving licence was fake. Secondly, that it did not bear the requisite endorsement from the relevant Transport Authority, to the effect that the driver could drive a passenger bus or any vehicle in hill areas, in terms of the requirement in Rule 185 (d) of the Himachal Pradesh Motor Vehicles Rules, 1999. The said Rule stipulates that the driver shall not drive a public service vehicle on any hill road, unless the driving licence has been enclosed for driving on hill roads by the Registering Authority. An Explanation to the said Rule is to the effect that, hill roads shall mean all roads of the State except those roads which may be excluded by the Government by a specific notification in the official Gazette.

6. The learned counsel for the insurance company submits that the legal requirement is specific for driving of vehicles in Himachal Pradesh, where the unfortunate accident occurred; that this requirement has been made mandatory because the skills for driving a vehicle in hill areas are of a separate kind, and such endorsement is only to ensure that the driver possesses the requisite skills so as to prevent any accident.

7. To a query put by the Court to the learned counsel for the appellant as to whether the endorsement for driving in hill areas is preceded by any trial or test by the relevant Transport Authority, the answer is that she will need to check it up. The rules are silent in this regard. No specific test has been prescribed nor is there any procedure laid down whereunder such test would be undertaken by the relevant Transport Authority, to test the skills of the drive