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2001 DIGILAW 753 (PNJ)

National Insurance Company Limited v. Dharamwati

2001-07-25

ADARSH KUMAR GOEL, S.S.SUDHALKAR

body2001
Judgment S.S.SUDHALKAR, J. 1. This appeal has been filed with an application for condonation of delay of 9 days in filing the appeal by the Insurance Company, who is also made liable to pay compensation to the claimants for the death of Sh. Shadi Ram in the motor accident. 2. The first point argued by the learned counsel for the appellant is that the driver of the vehicle was not holding valid driving licence and, therefore, the learned Tribunal has erred in making the appellant liable to pay the amount. The discussion of the licence is in para No. 12 of the award of the Tribunal. From the discussion, it is clear that the appellant had examined as RW-1 one Umesh, LDC of the Licensing Authority, Kaley Khan, New Delhi. He had produced the record pertaining to licence No. C-95120385, the number which is mentioned on the copy of Ex. R-2. The Tribunal held that the source of document Ex. R-2 is not brought on the file and therefore, it is not admissible in evidence. 3. Learned counsel for the appellant argued that the copy of the licence was got produced from the record of criminal case but who produced the same in the Criminal case, and how it was taken possession of for being produced in the criminal case, unless not shown, cannot go to show that it was a copy of the licence of the driver of the vehicle in question. The appellant has also stated in the appeal memo that the driver and the owner were proceeded against ex parte. It is, therefore, clear that none of them had produced copy of the driving licence. Unless the source of the document i.e. driving licence is not known, it cannot be said that the particular licence is that of the driver of the vehicle and that it is fake. 4. We find no infirmity in the finding of the learned Tribunal. 5. Learned counsel for the appellant argued that the driver and owner have been proceeded against ex parte and they have not come to challenge the contention raised by the appellant and hence adverse inference should be drawn. This is not a bipartite case but it is a tripartite case. Therefore, for the fault of driver or owner, the claimants cannot be penalised. This is not a bipartite case but it is a tripartite case. Therefore, for the fault of driver or owner, the claimants cannot be penalised. Moreover, burden to prove that the licence is not genuine is on the Insurance Company, as decided by the Supreme Court in the case of Narcinva V. Kamat V/s. Alfredo Antonio Doe Martins reported as 1985 Acc CJ 397 . 6. Therefore, we find that the finding of the Tribunal that the appellant has not proved that the licence was fake, deserves no interference. 7. The Tribunal has awarded interest at the rate of 12% per annum. Learned counsel for the appellant Insurance Company has argued that the Tribunal has erred in awarding interest at the rate of 12% per annum and for the purpose relied on the case of Kaushnuma Begum V/s. New India Assurance Co. Ltd. reported as 2001 Acc CJ 428 . We have, in F. A. O. No. 1864 of 2001 titled United India Insurance Company V/s. Pinki Walia, decided on 4-7-2001, considered the judgment of Kaushnuma Begums case (supra) with other judgments of the Supreme Court and held that when the interest is awarded at the rate of 12%, the rate of interest need not be disturbed. 8. No further ground has been argued. 9. In view of the above reasons, this appeal deserves to be dismissed. Therefore, it is futile to consider the question of condonation of delay. 10. Hence both the appeal and the application for condonation of delay are dismissed. Appeal dismissed.