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2000 DIGILAW 1414 (PNJ)

Devsons Pvt. Limited v. Manjit Kaur

2000-11-20

S.S.SUDHALKAR

body2000
JUDGMENT S.S. Sudhalkar, J. (Oral) - This appeal is filed by the owner of the vehicle i.e. Truck No. PJT-5548 challenging the award of the learned Motor Accident Claims Tribunal (hereinafter referred to as the "Tribunal") passed in MAC case No. 27 of 1994. The Tribunal awarded a sum of R. 3,88,000/- from the appellant and his driver (respondent No. 5). It was also ordered that the amount be paid within three months and if it was not paid within that time then the appellant and his driver respondent No. 5 shall also be liable to pay interest at the rate of 12 percent per annum from the date of writ petition till its realisation. 2. The Insurance Company respondent No. 6 was held not liable to pay the amount of compensation because the driver was held to be not holding a valid driving licence at the time of accident. 3. The appellant had given an application for additional evidence being CM No. 5830-CII of 1999. By the said application it was prayed that the appellant be permitted to produce one licence by summoning the witness from the concerned authority to prove the license and the certificate issued by the District Transport Officer, Faridkot and to summon the records of the Insurance Company to prove the correspondence. 4. It has so happened in this case and the position is admitted by learned counsel for the parties that before the Tribunal a driving licence was produced by the driver respondent No. 5 which was proved to be a fake licence. However, the appellant had also lodged a claim before the Insurance Company for the damage to the vehicle in the said accident and at that time a licence was produced by the appellant. It was a different licence than the one produced by respondent No. 5. On the basis of said licence the claim for damage to the vehicle was allowed by the Insurance Company. Issue No. 6 in the case is as under : "6. Whether respondent No. 1 was not having a valid driving licence at the time of accident ? If so, its effect ? OPR-3. The finding of the Tribunal on issue No. 6 was set aside vide order dated 17.11.1999 by this court and the Tribunal was directed to decide the issue afresh after recording the evidence led by the parties on the said issue. If so, its effect ? OPR-3. The finding of the Tribunal on issue No. 6 was set aside vide order dated 17.11.1999 by this court and the Tribunal was directed to decide the issue afresh after recording the evidence led by the parties on the said issue. It was also ordered that the licence produced by the driver was not to be considered by the Tribunal and the question raised was whether there was any driving licence other than licence No. 12610 and whether it was valid. 5. The Tribunal has decided the issue as per directions and found that the licence produced subsequently i.e. driving licence No.121335 is a valid one. 6. At the time of arguments, learned counsel for the Insurance Company raised three objections : "1. a person cannot have more than one driving licence; 2. that the finding that the driving licence No. 121335 is a genuine one is not correct; and 3. the Insurance Company should not be saddled with interest because it was the fault of the appellant that the genuine licence was not produced earlier and that Insurance Company is not responsible for the delay which has occasioned. 7. Regarding the first point, learned counsel for the Insurance Company has relied on section 6 of the Motor Vehicles Act (hereinafter referred to as the "Act") and has argued that a person cannot have two driving licences and, therefore, when a driver has two driving licences, the benefit of the newly produced licence should not be given to the driver. He also challenged the second driving licence in view of section 6(i) of the Act. However, he will not be able to get the benefit of the provision of this section. A person cannot have more than one licence. However, a fake licence cannot be said to be a licence and if one of the licenses held by a driver is fake, he cannot be said to be having more than one licence. Learned counsel for the appellant has cited the case of New India Assurance Co. Ltd v. Mandar Madhav Tambe and others, 1996(1) P.L.R. 644. In that case it has been held that a person having a learner licence would not be regarded as duly licenced for the purpose of liability of the insurance. Learned counsel for the appellant has cited the case of New India Assurance Co. Ltd v. Mandar Madhav Tambe and others, 1996(1) P.L.R. 644. In that case it has been held that a person having a learner licence would not be regarded as duly licenced for the purpose of liability of the insurance. However, this is not a case of learner licence and, therefore, this case cannot be said to be applicable to the facts of the present case. Learned counsel for the Insurance Company argued that the appellant is estopped from producing the second driving licence because a fake driving licence has been produced by the driver. I do not find any reason to accept this contention because owner cannot be estopped because of any act of the driver. 8. This then takes me to the second point raised by learned counsel for the Insurance Company. The Tribunal in its finding on issue No. 6 has held that licence No. 121335 is a genuine one. The record clerk of the Insurance company who appeared as RW2 brought on record a letter dated 4.4.1995 written by the Branch Manager of the Insurance Company to the appellant. At Ex.R3 is the reply by the appellant. Ex.R4 is the photostat copy of the cheque which the Insurance Company has issued to the appellant. RW3 Sarabjit Kaur is the Clerk in the office of the District Transport Officer, Faridkot. According to his deposition an application was submitted in order to verify as to whether the driver was having driving licence No. 121335/Faridkot valid upto 27.8.98 (issued from 2.9.1995 to 1.9.1995 and upto 27.8.1998). The District Transport Officer had sent endorsement which is Ex.R5/A that the licence was genuine one and necessary entry exists in his register. The register was brought by the witness. It pertained to Gurtej Singh son of Sunder Singh. M/s. Kausor India Limited is the sister concern of the appellant. They had written to the District Transport Officer, Faridkot (the writting by Kausor India Limited is not made basis of challenge and, therefore, I do not go to discuss that point.). The register was brought by the witness. It pertained to Gurtej Singh son of Sunder Singh. M/s. Kausor India Limited is the sister concern of the appellant. They had written to the District Transport Officer, Faridkot (the writting by Kausor India Limited is not made basis of challenge and, therefore, I do not go to discuss that point.). It has been found by the Tribunal that this document on close scrutiny went to show that M/s. Kausar India Limited wrote a letter on 18.11.1997 to the District Transport Officer, Faridkot for verification of the driving licence and it has been specifically mentioned that Gurtej Singh son of Sunder Singh was having a driving licence No. 121335 valid upto 27.8.98 issued from 2.9.1992 to 1.9.1995. Endorsement Ex.R5/A was made by the District Transport Officer, Faridkot thereby returning the above letter with the report that driving licence No. 121335 was a genuine licence issued in favour of Gurtej Singh. It is also observed by the Tribunal that this report goes to show that the surveyor visited DTO Office, Faridkot to verify the driving licence and after verifying the record of the DTOs office, he made an application on 5.3.1998 to the authority who made the following observations : "Returned in original with the remarks that D.L.No. 121335/DTO/FDK : as per records is in favour of Shri Gurtej Singh son of Sunder Singh and is for HTV and is from 2.9.1992 to 1.9.1995 and again from 28.8.1995 to 27.8.1998." 9. On the above report, the surveyor gave his opinion that the driving licence of Gurtej Singh son of Sunder Singh was genuine. 10. Learned counsel for the Insurance Company argued that the name in the driving licence No. 121335 is "Shri Gurtej Singh son of Sunder Singh" and the name of the driver in the claim petition as well as in the appeal memo is Gurtej Singh alias Teja Singh son of Sunder Singh and this "alias" has not been mentioned in the so driving licence. Be that as it may, it is not shown that this name of the driver is falsely mentioned. "Alias" name might not have been mentioned. It is also argued that the address of the driver in both the licence is different. However, that also cannot be a ground for rejecting the validity of the licence if otherwise can be proved by evidence on record. "Alias" name might not have been mentioned. It is also argued that the address of the driver in both the licence is different. However, that also cannot be a ground for rejecting the validity of the licence if otherwise can be proved by evidence on record. Moreover, according to the principle laid by the Supreme Court in the case of Narcinva V. Kamat and another v. Alfredo Antonio Doe Martins and others 1985 ACJ 397 the burden of proving that the driver was not holding licence is on the Insurance Company. In the present case the burden has been discharged, of course at the late stage, by the appellant. However, in the initial stage also when the claim was preferred by the appellant from the Insurance Company for the damage of the vehicle the valid driving licence was produced. It is argued by learned counsel for the Insurance Company that the Insurance Company has to process so many cases and, therefore if a fake driving licence is produced on record it cannot be blamed for not verifying the other licence. However, in the present case the genuine driving licence was produced before the Insurance Company for claim for damage arising from the same accident and while processing the same it could have immediately come to know that the claim for the accident was already paid so far as the damage to the vehicle was concerned. 11. From the evidence that has been led before the Tribunal and from the finding of the Tribunal, I find that the appellant has been able to prove that the driving licence No. 121335 held by respondent No. 5 at the time of accident was a valid licence. There is no reason to hold otherwise. 12. The next question is regarding interest. Counsel for the Insurance Company has argued that it may not be saddled with interest because delay in this case in payment of the amount has taken place only because the driver has produced a fake licence. It is true that the genuine licence was brought to the notice in this case at a late stage. Learned counsel for the Insurance Company has relied on the order dated 5.9.2000 in FAO 866 of 1999. It is an interim order and not a judgment. It is true that the genuine licence was brought to the notice in this case at a late stage. Learned counsel for the Insurance Company has relied on the order dated 5.9.2000 in FAO 866 of 1999. It is an interim order and not a judgment. In that case on the date of order it was conceded by the counsel for the Insurance Company that the vehicle in question was covered by a valid insurance policy. It was ordered that the only contention of the Insurance Company is that the driver was not possessing a valid driving licence and, therefore, the Insurance Company would deposit the principal amount of compensation within one month from the date of order and the owner of the vehicle shall deposit the interest amount also within the aforesaid period of one month and that the dispute between the owner and the Insurance Company regarding the liability will be thereafter determined. This is an interim arrangement. In the present case the fact is not disputed that the Insurance Company has paid the claim for damage to the vehicle relying on the genuine driving licence produced at that time. The claim petition in this case has been filed on 1.3.94 and it was decided on 19.3.98 while Ex.R3 is a letter dated 19.11.1997 written to the Insurance Company by the appellant stating that the genuine licence has been found. This letter was in connection with the claim of damage to the vehicle. 13. As per judgment of the Supreme Court in the case of Narcinva V. Kamat (supra), the burden of proving that the driver was not holding the licence was on the Insurance Company. The Insurance Company, during the pendency of the petition was informed regarding the number of the correct and genuine licence for processing the claim for damage to the vehicle. The claim was also allowed. Therefore, the Insurance Company cannot say that because fake driving licence was produced by the driver, the Insurance Company cannot be subjected to the payment of interest. Moreover, for the fault of the driver producing a fake driving licence, the owner of the vehicle cannot be penalised. 14. This then takes me to the question whether the Insurance Company will be suffering a loss if interest is ordered to be paid. In a Division Bench Judgment of the Gujrat High Court in the case of Dr. Moreover, for the fault of the driver producing a fake driving licence, the owner of the vehicle cannot be penalised. 14. This then takes me to the question whether the Insurance Company will be suffering a loss if interest is ordered to be paid. In a Division Bench Judgment of the Gujrat High Court in the case of Dr. Bhanuprasad Magnlal Bhatnagar v. Pravin Tapubhai Naik and others, 1981 (22) Gujrat Law Reporter 1271 while dealing regarding costs and interest, it was held that the costs and interest must of course be computed on the sum not exceeding the sum assured but subject to this limitation the burden to discharge the liability in respect of costs and interest on the sum assured has been cast on the insurer. It is further observed in the said judgment as under : ".... The principle underlying the aforesaid provision is self evident. In the eye of law the compensation would be payable to the third party on the very date of the accident. However, when the liability is disputed by the other side, it has to be determined by a competent court. In an ideal state of affairs one would expect it to be settled within a couple of months, but there is an inordinate time distance between what is ideal and what is real. Till the dispute is settled by the court which in the present state of affairs takes considerable time (in the present case it has taken about seven years) the third party who is sought to be protected would be virtually altogether deprived of the benefit of the sum assured, if the liability to pay costs and interest were not thrown on the shoulders of the insurer." 15. It is also observed in that said judgment as under : "...Insurance Company, which is liable to pay the insured amount immediately would secure the benefit of the user of the said sum for the period during which the litigation remains pending in the court. In other words, the insurer does earn interest on the amount which is payable at once but is paid after a lapse of years. Thus, it is the insurer who benefits by the delay occasioned in the court. In other words, the insurer does earn interest on the amount which is payable at once but is paid after a lapse of years. Thus, it is the insurer who benefits by the delay occasioned in the court. And it is, therefore, but just and proper that the insurer is saddled with the liability to this extent and is obliged to discharge the burden in respect of the item of interest." 16. Therefore, it is clear that had the Insurance Company been made to pay the amount earlier, it would have required to part with the amount at that time and having not parted with the amount earlier, it enjoyed user of the amount. Therefore, if it is required to pay interest and that too being a simple interest, it cannot be said that Insurance Company is put to a loss. 17. It is admitted fact that the principal amount was not deposited by the appellant within the time given by the learned Tribunal. Therefore, the respondent- claimant have become entitled to get the interest amount. The Insurance Company also in view of the above reason, has to be made liable to pay the interest. 18. As a result, this appeal is allowed. The Insurance Company respondent No. 6 is made jointly and severally liable along with the appellant and respondent No. 5 to pay the amount of compensation along with interest to the claimant-respondents. Appeal allowed.