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2008 DIGILAW 1327 (JHR)

Sewak Singh v. D. M. , National Insurance Co.

2008-11-24

D.K.SINHA, GYAN SUDHA MISRA

body2008
JUDGMENT 1. This appeal has been preferred by the appellant-owner of the vehicle bearing Registration No. ASOIL 2538, which had admittedly caused accident as a result of which one Roshan Kumar Mishra died on 7-12-2001. After his death, the claim petition was filed before the Motor Accident Claims Tribunal, Jamshedpur by the parents of the deceased. The Tribunal while entertaining the claim petition had issued notice to the Insurance Company so also the appellant-owner of the vehicle but it appears that the appellant-owner of the vehicle in spite of service of notice, did not choose to appear before the Tribunal and consequently the matter was adjudicated by the tribunal after hearing the Insurance Company and the absence of the owner of the vehicle was ignored as he had chosen not to appear in spite of service of notice. The tribunal after final adjudication was pleased to pass an award for a sum of Rs. 1,66,000/- along with interest in favour of the claimants-respondents. 2. This appeal has been filed by the owner of the vehicle by which he has not challenged the quantum of compensation but he has challenged the finding recorded by the Tribunal to the effect that the driving license owned by the driver of the vehicle, which caused accident, was a fake license. 3. The Tribunal had recorded a finding that the driving license owned by the driver of the offending vehicle was forged and fabricated and the amount of compensation was payable by the appellant-owner. In view of the settled proposition of law the appellant-Insurance Company paid the amount of compensation to the claimant but thereafter started an execution proceeding against the owner-appellant of the vehicle in order to realize the amount of compensation in view of the finding recorded by the tribunal to the effect that the driver of the vehicle, which was owned by the appellant, was driving the vehicle by holding a forged and fabricated license. 4. 4. Assailing the finding of the tribunal, it was submitted by the counsel for the appellant-owner of the vehicle that the finding recorded by the Tribunal was perverse as the certificate which was produced in regard to the license of the driver issued by the Regional Transport Officer, was itself not correct as the vehicle was driven by one Lakshmi Narayan Prasad, whose name had also appeared in the F. I. R., but the certificate which was produced by the Insurance Company before the tribunal for the driver who was alleged to have driven the vehicle, was in regard to one Baban Mahto son of Kesho Mahto and in regard to this, the certificate which was marked as Ext. A has been also annexed to this appeal. It was submitted that the Insurance Company had relied upon the driving license of Baban Mahto and not Lakshmi Narayan Prasad who, according to the FIR, was driving the vehicle and as per the version of the counsel for the owner-appellant of the vehicle, he was holding a valid driving license although he might have committed negligence while causing the accident in view of which the owner of the vehicle would not be liable to pay the amount of compensation to the claimant and thus realization of the amount from the appellant-owner by the Insurance Company would be illegal and unjustified. 5. Initially, of course, it was difficult to accept the contention of the appellant-owner of the vehicle as he had failed to appear before the tribunal in spite of service of notice. Nevertheless when the tribunal chose to enter into the correctness and validity of the driving license, it was duty bound to ensure that the certificate in regard to the driving license of the driver, Lakshmi Narayan Prasad should correctly be verified. The certificate issued by the R.T.O. submitted by the respondents-Insurance Company on the face of it, suffers from grave discrepancy as the name of the driver of the vehicle which was also indicated that it was driven by Lakshmi Narayan Prasad, ought to have been scrutinized with accuracy. The certificate issued by the R.T.O. submitted by the respondents-Insurance Company on the face of it, suffers from grave discrepancy as the name of the driver of the vehicle which was also indicated that it was driven by Lakshmi Narayan Prasad, ought to have been scrutinized with accuracy. It was clearly the duty of the Insurance Company, to ensure that the certificate in regard to the driving license of Lakshmi Narayan Prasad, should have been produced before the Tribunal, but it is sufficiently clear that the certificate was not produced in regard to Lakshmi Narain Prasad but it was in regard to Baban Mahato who had nothing to do with the accident. Thus the finding recorded by the Tribunal to the effect that the vehicle was driven by a driver without a valid driving license and the same was forged and fabricated, suffers from perversity even on prima facie reading of the I finding in this regard. 6. Hence the appeal deserves to be allowed by this Court and the matter is fit to be remanded before the Tribunal for a fresh consideration of the question in regard to the finding rendered on the driving license of the driver which caused the accident. But as the matter is pending before the executing Court, the remand of the matter to the Tribunal will unnecessarily result into delay and multiplicity of the proceeding. 7. As we have noticed that the execution case is already pending at the instance of the Insurance Company wherein it has raised its claim for realization of the amount of compensation from the owner of the vehicle on the ground that the license owned by the driver of the vehicle is fake and forged, we deem it just and appropriate to direct the executing Court itself to grant liberty to the contesting parties to establish the fact as to whether the driving license owned by Lakshmi Narayan Prasad, who caused the accident, was in fact fake or forged. While doing so the driving license produced by the Insurance Company in regard to the certificate of the R.T.O. of Baban Mahato shall also be examined in order to scrutinize as to whether Baban Mahto and Lakshmi Narain Prasad are one and the same persons. 8. While doing so the driving license produced by the Insurance Company in regard to the certificate of the R.T.O. of Baban Mahato shall also be examined in order to scrutinize as to whether Baban Mahto and Lakshmi Narain Prasad are one and the same persons. 8. Thus this appeal is allowed and disposed of to the extent that the contesting parties i.e. the appellant-owner of the vehicle and the Insurance Company shall have liberty to establish their respective cases before the executing Court to the extent as to whether the driving license of Lakshmi Narain Prasad was forged and fabricated or not. We deem it appropriate to direct the executing Court to consider this aspect of the matter also. 9. The counsel for the parties will be at liberty to lead adequate evidence in order to establish the fact before the executing Court on the limited issue of the validity of the driving license of Lakshmi Narain Prasad. 10. We, thus, dispose of this appeal in the light of the aforesaid observations.