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2009 DIGILAW 637 (JK)

New India Assurance Co. Ltd. v. Kuldeep Chand

2009-12-11

B.L.Saraf, G.D.Sharma

body2009
Per Justice G.D. Sharma, J. (Oral) 1. Through the medium of this appeal, Order dated 21.05.2005 passed by the Learned Divisional Forum Jammu (Herein after be referred to as Forum) has been challenged on the grounds that the Ld. Forum without deciding the application of the appellant dated 14.02.2005 has decided the case by being influenced by the law laid down by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd v. Lehru and Anr. As reported in AIR 2003 (SC) 1292 . In this Judgment the law laid downs was in respect third party risk as covered under S.149 of the Motor Vehicles Act. The Ld. Forum has held that the respondent had engaged the services of driver Parvez Ahmad after due verification and that licence though issued from RLA Solan (HP) while it was renewed by ARTO Udhampur and that was sufficient verification for the respondent to take the licence as genuine. 2. It has been argued by the Learned Counsel of the Appellant that the law laid down in Lehru's case (supra) has undergone a sea change as the Hon'ble Supreme court in the case of National Insurance Co. Ltd v. Laxmi Narayan Dhut 2007(2) Supreme 721 has held that "benefit of third party risk cannot be extended to owner of offending vehicle. Logic of fake licence has to be considered differently in respect of third party and in respect of own damage claim." In other words the view taken in Lehru's case in respect of own party risk has undergone a sea change and the principle of third party risk cannot now apply. 3. We have considered the submission. From the perusal of the record it appears that the Learned Forum has placed reliance on the report of a surveyor namely Mr. Kuljeet Singh which was received in the office of the appellant on 24.12.2003. In this report, he has mentioned that he visited the licensing authority Solan and verified the records but the officials refused to give him the confirmation letter. He has reproduced himself the language of that confirmation letter in the following manner:- "As per my verification from RLA Office Solan the above mentioned licence has not been issued from RLA Solan". In this report, he has mentioned that he visited the licensing authority Solan and verified the records but the officials refused to give him the confirmation letter. He has reproduced himself the language of that confirmation letter in the following manner:- "As per my verification from RLA Office Solan the above mentioned licence has not been issued from RLA Solan". The Forum has not given any weight-age to the credibility of this independent report and straightway has applied the principle of Lehru's case which had no application to the facts of the case in hand. Legal error was committed in not giving the appellant sufficient opportunity to probe the genuineness or fakeness of the driving licence in question. The ends of justice required that application made by the appellant had to be considered. In this view of the matter, we find the order suffering from legal infirmity. Hence the appeal is accepted and the complaint is remanded to the forum to give the parties an opportunity to probe the fakeness or genuineness of the driving licence in question. In other words the appellant should be given an opportunity to prove the genuineness of the alleged driving licence. We trust and hope that the Learned Forum will give top priority for the decision of the case which is pending disposal from 05.06.2004. The counsel of the appellant is directed to cause his appearance before the Forum on 15.01.2010. The record of the Forum be sent back immediately. The Learned Forum shall not be influenced by any observations made in this order with regard to the merits of the case. The whole deposited amount for filing the appeal be refunded in favour of the appellant.