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2005 DIGILAW 3237 (RAJ)

National Insurance Company Limited v. Mahendra

2005-12-07

B.PRASAD

body2005
Judgment B. Prasad, J.- Heard. 2. This is an appeal by the Insurance Company against the award. Learned Counsel for the Insurer urged that no liability could have been fastened on the head of Insurance Company because the license of the driver was a forged one. Secondly, it was urged that the owner has not come in witness box to discharge his burden because as and when a owner engages a driver, he is supposed to engage a driver who is legally qualified to drive the vehicle. Since, the owner had not come to depose that the driver was qualified driver, it should be presumed that the owner has not discharged his burden. Further the learned Counsel for the appellant submitted that a decision has gone against the opposite party in Consumer Forum that the driver was not legally qualified person to drive the vehicle and that concluded the issue and this issue was res judicata before the Tribunal. 3. Learned Counsel for the respondents urged that the Insurance Company is taking pleas which are un-sustainable. The driving license was produced before the Tribunal. The Insurance Company wanted to dispute the genuineness of the license by simply producing an application and endorsement on that application contending that the driving license was not issued by the authority issuing it. Neither the person from that office has appeared nor the scribe of certificate has appeared. Without the scribe having been produced, the substance could not have been proved. Only by writing an application, it cannot be said that license was not a genuine license. 4. Learned Counsel for the respondent further urged that once the driving license was on record and that too in the background that it was renewed also, there was sufficient care taken by the owner of the vehicle. The owner had seen the driving license of the driver which was renewed also. Therefore, it cannot be said that the owner was not vigilant of verifying the credentials of the driver. No adverse inference can be taken against the owner. That being the position, no adverse inference can be taken against the owner. 5. As regards res judicata, the learned Counsel for the respondent submits that this plea is not available to be raised. No such plea was taken in written statement. No adverse inference can be taken against the owner. That being the position, no adverse inference can be taken against the owner. 5. As regards res judicata, the learned Counsel for the respondent submits that this plea is not available to be raised. No such plea was taken in written statement. To establish that there was previous lis between the same parties, their pleadings were requires to be filed. They have not been filed. Copy of decision alone has been filed. In that background, to sustain the plea of res judicata, on sufficient material was available on record. The issue was not raised in written submissions and only decision has been filed. That decision filed itself is not conclusive of the fact that lis was in between the same parties. The issue involved was substantial and materially in issue. Therefore, this question of res judicata is not available to the respondent. 6. I have considered the rival submissions and have given my thoughtful consideration. As regards the license, since the license was on record and the background in which the Insurance Company wanted to challenge it, no substantial proof was produced before the Court. The writing of the scribe doubting the validity of the driving license was not proved. Therefore, it cannot be said that doubt which was sought to be created by the Insurance Company was established. Unless some evidence is produced which is otherwise admissible in law, it cannot be said that by merely saying that the license was forged, a finding a forgery can be arrived at. The Tribunal has taken care of examining the evidence and has come to the conclusion that the material on record was sufficient enough to indicate that the license was genuine and its genuineness could not be doubted only because of a simple writing. If that writing was not proved by the person who made that writing, it cannot be said that the driver was not holding a valid driving license. This having been held by the Tribunal, this Court feels that it should be slow in interfering with the finding which has been arrived at after appreciating evidence on record. As regards the owner, once when a license is produced which has been renewed subsequently, the owner had hardly a mechanism to assail the validity of that. This having been held by the Tribunal, this Court feels that it should be slow in interfering with the finding which has been arrived at after appreciating evidence on record. As regards the owner, once when a license is produced which has been renewed subsequently, the owner had hardly a mechanism to assail the validity of that. In that background, once when the material was available before the Court, the owner could not have said anything in the Court than what has already been said. In that background, this argument of the learned Counsel for the appellant also deserves to be rejected. 7. The point of res judicata cannot be pressed in this case because to establish the fact of res judicata, the parties are required to file pleadings, issues and decision just to make the Court conscious of all those requirements which are given under Section 11, CPC. Merely by filing copy of decision of Tribunal, it cannot be said that foundation has been laid for establishing the point of res judicata. In that view of the matter, all the three arguments raised on behalf of the appellant are rejected. The appeal having no force is hereby dismissed.