Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 1264 (RAJ)

Manohar Das v. Mishri

2010-07-20

MAHESH BHAGWATI

body2010
JUDGMENT : Hon’ble BHAGWATI, .J.-Challenge in this appeal is to the judgment under the award dated 21.2.1999 rendered by the Motor Accident Claims Tribunal, Behror, District Alwar, whereby the learned Tribunal decreed an amount of Rs. 90,000/- as compensation in favour of the claimants-respondents No.1 to 9 and against appellants/non-claimants No.2 and 3. 2. Back ground facts of the case, in a nut shell are thus: That on 16.2.1994 at about 7.00 a.m., deceased Ruda Ram was sitting before his house and smoking hukka (smoking tobacco through water). It is alleged that suddenly one tractor bearing registration No. RJ 02 R 3087 driven by Jaswant rashly and negligently at a fast speed, emerged and the driver of the tractor caused it to rise upon Ruda Ram, as a result of which he sustained injury. Ruda Ram, during the course of treatment, succumbed to the injuries. The claimants-respondent No.1 and 9 filed a claim petition before the learned Tribunal where after completion of trial, the learned Tribunal decided the claim as indicated hereinabove. 3. Heard the learned counsel for the parties and carefully perused the relevant material on record, including the impugned award. 4. The only crucial question springing for consideration in the instant appeal is as to whether the driver of the offending tractor was having a fake and fabricated driving license and respondent No.11-New India Assurance Company Limited is not liable to make the payment of compensation to the claimants of deceased Ruda Rami 5. Learned counsel for the appellants took me through the relevant portions of the impugned award as also the statement of NAW-3 Dr. Sunil Sharma and canvassed that the offending tractor is stated to have been driven by Jaswant, when the accident allegedly took place. The appellants are the owners of the tractor and they got the tractor insured with the New India Assurance Company Limited. Learned counsel further canvassed that the learned Tribunal dismissed the claim petition against the respondent No.1 New India Assurance Company Limited on the ground that the driving license of Jaswant was fiound to be fake and fabricated and absolved the insurance Company from its liability to make the payment of compensation. Learned counsel contended that the statement of NAW-3 Dr. Sunil Sharma is not reliable and trustworthy. Learned counsel contended that the statement of NAW-3 Dr. Sunil Sharma is not reliable and trustworthy. He is said to have gone to the office of the Transport Authority, Una and having enquired from there, found that the said driving license was not issued by the Transport Department of Una. He obtained the report Exhibit D/3, but the same is not duly proved. Learned counsel further contended that neither that Jeevan Kumar, who is said to have made an endorsement on the report Exhibit D/3, nor the register on the basis of which the endorsement on report Exhibit D/3 is said to have been made, has been produced in evidence. Thus, neither the endorsement made on the report Exhibit D/3 is admissible in evidence nor the statement of NAW-3 -Dr. Sunil Sharma is worth relying. 6. E Converso, the claimants proved the fact that Jaswant was having a valid driving license. The owner of the offending vehicle did not commit any breach of the conditions of the insurance policy, hence, the insurance company cannot be absolved from its liability, rather it is liable to make the payment of compensation. He has cited the judgments rendered by the Hon’ble Apex Court in the cases of Rukmani & Ors. vs. New India Assurance Co. & Ors. reported in 1998 DNJ (SC) 422 = RLW 1999(2) SC 253 and New India Assurance Company Limited vs. Ramnarain & Ors., reported in 2010(1) WLC (Raj.) 31 = 2009(2) CCR 1384 (Raj.), in support thereof. 7. Learned counsel for the appellants further argued that the respondent-Insurance Company has also filed to prove the fact that driving license of Jaswant being fake and fabricated, was in the knowledge of the owner of the tractor, when the accident thereof took place. The owners of the tractor relying upon the driving license, employed Jaswant in their employment, and in that even also, the insurance company cannot be absolved from its liability to make the payment of compensation. 8. E Contra, the learned counsel for the respondent-Insurance Company defended the judgment under the award and stated the same to be just and proper, which warrants no intervention. 9. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the respondent/non-claimant was the driver of the offending vehicle at the time of accident. 9. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the respondent/non-claimant was the driver of the offending vehicle at the time of accident. He was having license, but the same has been found to be fake and fabricated by the learned Tribunal. The learned Tribunal has relied upon the statement of NAW-3 Dr. Sunil Sharma and his report Exhibit D/3, which bears the endorsement of the licensing authority. Uno I find sufficient force in the contention of the learned counsel for the appellants that neither the insurance company has produced Jeevan Kumar, who is said to have made an endorsement on report Exhibit D/3 with regard to the fact that the driving license of Jaswant was not issued by the department nor that register has been adduced on the basis of which the endorsement is said to have been made. No person from the office of licensing authority, Una has been produced in the Court to prove the report endorsed on Exhibit D/3 and NAW-3 Dr. Sunil Sharma admittedly is in the employment of the Insurance Company. His testimony with regard to the endorsement of the report Exhibit D/3 is of no avail, as it is not the report which has been made by him. In the absence of any evidence of the competent person of the office of licensing authority, Una, the driving license produced by respondent/non-claimant Jaswant cannot be said to be fake and fabricated. The Insurance Company has also failed to prove the fact of driving license being fake and fabricated was in the knowledge of the owners of the tractor when they employed Jaswant to drive the tractor. 10. In the case of National Insurance Company Limited vs. Swam Singh & Ors. reported in 2004(1) WLC (SC) Civil 270 = RLW 2004(2) SC 161, it has been held that mere absence, fake or invalid driving license or disqualification 25 of the driver for driving, are not in themselves defences available to the Insurance Company. 11. This aspect of the matter stands covered by decision of the Hon’ble Apex Court in the case of National Insurance Company vs. Kusum Rai & Ors., reported in (2006) 4 SCC 250 = RLW 2006(3) SC 1863 also, wherein the Hon'ble Supreme Court referring to National Insurance Company Limited vs. Swam Singh & Ors. 11. This aspect of the matter stands covered by decision of the Hon’ble Apex Court in the case of National Insurance Company vs. Kusum Rai & Ors., reported in (2006) 4 SCC 250 = RLW 2006(3) SC 1863 also, wherein the Hon'ble Supreme Court referring to National Insurance Company Limited vs. Swam Singh & Ors. (supra) has opined as under:- "14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of he owner vis-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating (SCC pp. 336-37, para 89). 12. Both the aforesaid decisions have been cited in the case of Ishwar Chand & Ors. vs. The Oriental Insurance Co. Ltd. & Ors. reported in MACD 2007(1) (SC) 416 and the Hon'ble Apex Court placing reliance on the judgment of Swaran Singh (supra) and Kusum Rai & Ors. (supra) held thus: "From a bare perusal of the said provision, (Proviso to Section 15(1) of the Act relating to renewal of Driving License), it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Sec. 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place on 28.4.1995. As on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident." 13. In the case of National Insurance Company Limited vs. Swam Singh & Ors. (supra), it has been categorically held by the Hon’ble Apex Court that mere absence, fake or invalid driving license or disqualification of the driver for driving, are not in themselves, defences available to the insurance company. In the case of National Insurance Company Limited vs. Swam Singh & Ors. (supra), it has been categorically held by the Hon’ble Apex Court that mere absence, fake or invalid driving license or disqualification of the driver for driving, are not in themselves, defences available to the insurance company. The Hon’ble Apex Court in plethora of cases has reiteratedly held that merely on this ground that the driving license was found to be fake, the insurance company cannot be absolved from its liability to make the payment of compensation to the claimants of the deceased of the insured claimants. In the instant case, the learned Tribunal did not take into consideration all these aspects and arbitrarily held that the driving license of Jaswant was found to be fake and fabricated, whereas no relevant evidence to prove the same is produced by the insurance company. The learned Tribunal is found to have erringly placed reliance on the testimony of NAW-3 Dr. Sunil Sharma whose statement with regard to endorsement on the report Exhibit D/3, is of no avail. His evidence, in this regard, is not admissible under the provisions of the Indian Evidence Act. The finding of the learned Tribunal is found to be based on surmises and conjectures. The inference drawn by the learned Tribunal to the effect that the insurance company was not liable to pay the compensation, is found to be based on no evidence. The impugned judgment to this effect is found to be arbitrary and caprice, which warrants intervention. 14. In the ultimate analysis, I am of the view that the defence of mere absence, fake or invalid driving license or disqualification of the driver for driving, is not available to the insurance company in light of the decision in the case of National Insurance Company Limited vs. Swaran Singh & Ors. (supra). Thus, the insurance company is held liable to make the payment of compensation to the claimants-respondents. 15. No other argument, except above, has been advanced by either of the parties. 16. For the reasons stated above, this appeal is partly allowed and the impugned award dated 24.2.1999 passed by the Motor Accident Claims Tribunal, Behror, District Alwar is modified to the following effect:- That the claimants-respondents No.1 to 9 are held entitled to get an amount of Rs. 16. For the reasons stated above, this appeal is partly allowed and the impugned award dated 24.2.1999 passed by the Motor Accident Claims Tribunal, Behror, District Alwar is modified to the following effect:- That the claimants-respondents No.1 to 9 are held entitled to get an amount of Rs. 90,000/- as compensation from the appellants No.1, 2 and respondent/non-claimant No.11-New India Assurance Company Limited, jointly and severally. Rest of the terms of the award shall remain unchanged. 17. The impugned award stands modified, as indicated hereinabove. 18. There shall be no order as to costs.