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2002 DIGILAW 9 (GAU)

Parag Sarma v. Rajeswar Roy

2002-01-04

AFTAB H.SAIKIA, J.N.SARMA

body2002
J.N. SARMA, J. — MAC Appeal No. 59/2000. We have heard Mr. B.P. Kataki, learned Advocate for the appellant and Mr. B. Kalita, learned Advocate for the respondent. 2. This appeal is not maintainable inasmuch as it is basically an appeal against the quantum and is barred under Section 149 of the M.V. Act. accordingly, this appeal shall stand dismissed. W.P.(C) No. 2801/2000 3. This application has been filed under Article 226/227 of the Constitution challenging the legality and validity of the award dated 19.4.2000 passed by the learned Member, Motor Accident Claims Tribunal, Kamrup in MAC Case No. 586(K)ofl995. 4. The ground on which the award is challenged is that there was no valid driving licence of the driver. In order to appreciate this contention we must look to the written statement filed on behalf of the insurance company and the evidence adduced in support of it. In paragraphs 10 and 11 of the written statement, it is stated as follows : Para 10 : "That as regards the statements made in paragraph 16 of the claim application, it is found that the vehicle i.e. AXA-7725 Ambassador Tourist Taxi was driven by the person who was not duly licensed and it also appears from the records that the Insurance policy No. 200103/31/92/69/CC 312 as mentioned in the particulars of the opposite party 3, was not issued by this Insurance Company. Since the vehicle was plied violating the statutory provision, conditions of the Insurance Policy as contemplated under the Sections 146 and 149 (2)(a) (ii) respectively of the Motor Vehicle Act, 1988, this opposite party is not liable to accept the obligation in respect of this claim and to indemnify the awarded amount of compensation if at all, in future." Para 11 : "That, regarding the statements made in paragraph 17 of the claim petition, the Driving licence No. 56736 as mentioned in the particulars of the opposite party 2, was verified in the office of the District Transport Officer, Kamrup, West Zone. The District Transport Officer, Kamrup has intimated on the body of the letter No. JS/Advo/95 10 dt. 19.12.95 that the driving licence of such number i.e. 56736 was not issued. A copy of the letter is annexed at "A". The District Transport Officer, Kamrup has intimated on the body of the letter No. JS/Advo/95 10 dt. 19.12.95 that the driving licence of such number i.e. 56736 was not issued. A copy of the letter is annexed at "A". As the vehicle was driven by the unlicenced driver in contravention to the specified condition of the policy of Insurance as provided for under Section 149(2)(a)(ii) of the Motor Vehicle Act, 1988, the Insurance Company will not stand in law to pay amount of compensation if any, at all." 5. The issue on this point is issue No.2 which reads as follows : "2) Whether the false driving licence though may be validly renewed would become a valid driving licence or a duly issued licence ?" The finding of the learned Tribunal on this point is as follows : "These two issues relate to the validity of the driving licence and consequent breach of the specified condition of the insurance policy. The Insurance Co. had taken the pleas in the additional w/s filed, and examined one witness. The Insurance Co. (O.P. 3) submitted that the suffix 'MS' representing the central District of Manipur was not added to the D/L No. 56736 as shown in the w/s filed O.P. 1 and O.P. 2 and hence the D/L was fake. Witness Dipak Kr. Sarma (DW 1) stated that on verification with the DTO, Kamrup, West Zone, the D/L No. F 1974/90/K was found renewed and valid upto 13.10.98. On being cross examination by OP 1 and OP 2 it was admitted by DW 1 that the D/ L was valid on the date of accident. DW 1, however, maintained thai the original D/L was issued by DTO, Central District Imphal and upon verification it was found that the D/L No. 56736/MS was issued not in the name of OP 2 but in the name of one Sapan Monoranjan Singh. Ext. (C) is the document produced in this regard." Accordingly, it came to the finding that the driving licence was a valid licence. The law on this point is well settled that when a plea is taken by the Insurance Company that the driver did not have a driving licence. The burden is on the insurance company and the burden must be discharged by the insurance company and in this particular case that was not done. The law on this point is well settled that when a plea is taken by the Insurance Company that the driver did not have a driving licence. The burden is on the insurance company and the burden must be discharged by the insurance company and in this particular case that was not done. The Supreme Court in 1985 ACJ 397 (SC) (Narcinva Kamat -Vs- Alfredo Antonio Doe Martins) has pointed out as follows : "The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The appellant No.2 was under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. Further the R.T. A. which issues the driving licence keeps a record of the Licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company." Further in 1989 ACJ 1078 (Ashiram Yadav -Vs- Oriental Fire &Genl. Ins. Co. Ltd.) the Supreme Court pointed out as follows: "It must be established by Insurance Company that the breach was on the part of insured. In the case of Bishan Devi -Vs- Sirbaksh Singh, 1979 ACJ 496 (SC), his Lordship expressed the view: "Under Section 96(2)(b)(ii), the Insurance Company can defend the claim for compensation... Apart from making the averment in the statement the insurer did not take any steps to establish that the vehicle was driven by a person, who was not properly licensed. It is the duty of the insurer to have substantiated the plea." 6. The learned Advocate for the appellant relies on a decision reported in 2001 AIR SCW 1340 (New India Assurance Co., Shimla -Versus- Kamla and others) and he relies on paragraph 12 of the judgment of the Supreme Court which reads as follows: "If a fake driving licence happened to be renewed by the statutory authorities, the fakeness of the original document does not get legally sanctified. The Insurance Company shall not be liable to pay compensation in respect of a motor accident occurred while the vehicle was driven by a person holding such a sham licence. The Insurance Company shall not be liable to pay compensation in respect of a motor accident occurred while the vehicle was driven by a person holding such a sham licence. A fake licence cannot get its forgery out fit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any licensing authority to "renew a driving licence issued under the provisions of this Act with effect from the date of its expiry". No licensing authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine." 7. That is not the position in the case in hand. It was not known by the licensing authority that the original licence which was issued was a fake licence. It was not the finding of the Tribunal that the fake licence was renewed by the DTO, Kamrup but the Insurance Company failed to discharge the burden that the licence which was produced before the Tribunal was a fake licence. This case is no help to the appellant. 8. Next case relied on by Mr. Kataki is 1997 (7) SCC page 558 (United India Insurance Co. Ltd. -Versus- Gian Chand and others). That was a case where the car which was insured was handed over to another person to be driven by him and it was later on found that this person had no valid driving licence and accordingly the Insurance Company was held not to be liable. That is not the position in the case in hand as indicated above. So, this case is also no help to the learned Advocate for the appellant. 9. The next ground urged is that the amount of Rs. 8 lacs with interest @ 12% p.a. from 27.7.95 is arbitrary and exorbitant amount, and this writ Court also on the ground of arbitrariness can touch the award. So, this case is also no help to the learned Advocate for the appellant. 9. The next ground urged is that the amount of Rs. 8 lacs with interest @ 12% p.a. from 27.7.95 is arbitrary and exorbitant amount, and this writ Court also on the ground of arbitrariness can touch the award. There is no doubt that a writ Court in order to do justice can look to that aspect of the matter and can find out whether the amount is just compensation or not as provided under Section 168 of the M.V.Act. The just compensation as is understood in the common parlance is that the amount which shall be accepted as reasonable by the society in general. The Tribunal has no business either to be miser in awarding the award or it should not pass fanciful award. If any authority is required for thisjproposition of law one may have a \ooksitAIR1980SC 1354 (N.K.V. Bros (P) Ltd. -Vs- M. Karunmai Ammal) and 1999(4) SCC page 22 (Ashwani Kumar Mishra^Versus- P. Muniam Babu and others) wherein the Supreme Court in paragraph 4 pointed out as follows : "While assessing damage, the Court cannot base its opinion merely on speculation or fancy though conjectures to some extent are inevitable." 10. Accordingly, we gave a cursory look to the evidence on record not to re-appreciate the evidence but in order to find out whether there is justification to grant award of Rs.8.00 lacs, we must look to the evidence because if we find that the award is based on no evidence certainly writ Court must touch it. P.W. 1 is Parag Sarma. He deposed that he spent about Rs.3.00 lacs towards treatment. He was first treated by R.N. Chakraborty and thereafter went to Apollo Hospital, Delhi. The document in support of expenditure has been produced and they were not marked as Exhibits before the Tribunal but inspite of it not to cause injury or prejudice to the appellant for the laches on the part of the lawyer we look to the document and we find that the documents are only for an amount of Rs.30,000/-(Rupees thirty thousand) only and odd. The claimant stated that there was multiple fracture in the right leg and hip joint was also badly affected and a plate was fixed on the hip joint. He was in Down Town Hospital for a period of 28 days. The claimant stated that there was multiple fracture in the right leg and hip joint was also badly affected and a plate was fixed on the hip joint. He was in Down Town Hospital for a period of 28 days. The plate which has been fixed requires replacement from time to time. He also deposed that he is a Class-I contractor and Income-tax payee and because of the injury he will not be able to do his contract work properly in future. The Doctor opined that his right hip was permanently disabled by 75% and he further opined that there is no chance of complete recovery. Considering all these aspects of the matter, we feel that the amount which was awarded should be reduced and accordingly, we reduce the awarded amount to Rs.6.00 lacs (Rupees six lacs) only as there is no sufficient materials to show that he has spent Rs.3,76,000/- (Rupees three lacs seventy six thousand) only for medical expenditure, and the interest also shall stand reduced to 9% because we find from the record of the lower Court that the claimant himself was guilty for delay. Already an amount of Rs.4,25,000/-(Rupees four lacs twenty five thousand) has been withdrawn by the claimant and an amount of Rs.25,000/- (Rupees twenty five thousand) only is in the deposit before this Court. The interest shall be calculated on the balance amount only. 11. The appeal is accordingly disposed of.