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Rajasthan High Court · body

2014 DIGILAW 1128 (RAJ)

Oriental Insurance Company Ltd. v. Manu

2014-05-14

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal has been preferred by the appellant Insurance Company against the judgment cum award dated 16.11.1999 passed by learned Motor Accident Claims Tribunal, Jaisalmer in M.A.C. No. 31/1997 whereby, the Tribunal awarded a total compensation of Rs. 2,90,500/- to the respondents claimants on account of the death of Shri Kala Ram in a road accident and held the appellant Insurance Company to responsible to satisfy the award. 2. The appellant Insurance Company has approached this Court by way of this appeal assailing the award principally challenging the finding whereby it was held responsible to satisfy the decree. The challenge has been made by the appellant to the impugned award and the finding recorded by the Tribunal on the ground that the licence held by the driver of the offending vehicle was fake and thus, the Insurance Company was wrongly held responsible to satisfy the award. 3. Shri U.C.S. Singhvi learned Counsel for the appellant Insurance Company urged that subsequent to the decision of the claim, authorised investigator of the Insurance Company, on the basis of the investigation made by him, reported that the licence held by the driver of the insured vehicle was fake and forged. An application under Order 41, Rule 27 C.P.C. has been filed before this Court for bringing on record evidence to the effect that the licence held by the driver was fake. Shri Singhvi submitted that the Insurance Company be permitted to lead evidence in this regard and the matter be remanded back to the Tribunal for fresh consideration in light of the evidence, which is received on the application. He referred 10 the letter dated 7.12.1999 allegedly forwarded by one Shri Nityananda Routaraya Advocate wherein it has been mentioned that upon verification of the records of the DTO, Cuttack, he came to know that the driving licence No. 1604/CK/92 had not been issued to anybody by the Licencing Authority, Cuttack. Shri Singhvi relied upon the judgment rendered by the Hon'ble Division Bench of the Punjab and Haryana High Court in the case of National Insurance Company Limited v. Smt. Bala Devi and Ors. reported in 1997 ACJ 1297 and submitted that additional evidence be taken on this issue so that the defence of fake licence can be established and proved. 4. reported in 1997 ACJ 1297 and submitted that additional evidence be taken on this issue so that the defence of fake licence can be established and proved. 4. Per contra, Shri M.S. Soni and Shri M.R. Choudhary learned Counsels appearing for the respondents claimants submitted that no plea was taken by the Insurance Company in its written statement filed before the Tribunal regarding the licence held by the driver being fake. They thus urged that the appellant Insurance Company is not entitled to challenge the findings recorded by the Tribunal in this regard as it had not taken any such plea in the written statement filed to the claim. 5. I have considered the arguments advanced by the learned Counsel for the parties and have gone through the impugned judgment cum award as well as the application filed by the appellant Insurance Company under Order 41, Rule 27 C.P.C. and the letter relied upon by the learned Counsel for the appellant Insurance Company. As the Insurance Company claims to have acquired knowledge of the licence being fake subsequent to the judgment of the Tribunal, it can be permitted to raise this plea even if no such stand was taken in the written statement. 6. Now coming to the merits of the case, the letter on which much stress is placed by Shri U.C.S. Singhvi was issued by an Advocate named Shri Nityananda Routray. The letter is not supported by any certificate etc. of the Licencing Authority, Cuttack. Furthermore, it is not clear from the letter that the Advocate Nityananda Routaraya is an Official Investigator of the Insurance Company. Therefore, this Court is of the opinion that the facts of the decision relied upon by the learned Counsel for the appellant in the case of National Insurance Company Limited. v. Smt. Bala Devi (supra) are not applicable to the present case. In Smt. Bala Devi's case, the authorised investigator of the Insurance Company gave a deposition before the Tribunal that the driving licence held by the driver of the offending vehicle was fake. In that background, the Hon'ble Division Bench of the Punjab and Haryana High Court held that the Tribunal should have recorded the relevant evidence on this issue by summoning the concerned official of the RTO, Cuttack for providing proper opportunity of defence to the Insurance Company. In that background, the Hon'ble Division Bench of the Punjab and Haryana High Court held that the Tribunal should have recorded the relevant evidence on this issue by summoning the concerned official of the RTO, Cuttack for providing proper opportunity of defence to the Insurance Company. In the case at hand, the Insurance Company took no plea in the proceedings before the Tribunal that the licence was forged. The Advocate Shri Nityanand Routray is admittedly not an Official Investigator of the Insurance Company. Though the letter issued by an Advocate normally cannot be doubted but, for this Court to exercise the powers under Order 41, Rule 27 C.P.C., the letter should have been supported by some document issued by the Licencing Authority, Cuttack so that the extraordinary powers of taking evidence in appeal could have been exercised. Apart from a bald assertion in the letter and the affidavit of the Advocate, there is no supporting material on the strength whereof, this Court can arrive at a satisfaction that the licence held by the driver Ramesh Kumar was fake or forged. Thus, this Court feels that the application filed by the appellant Insurance Company under Order 41, Rule 27 C.P.C. is not fit to be accepted. 7. That apart, even if for arguments' sake, it is accepted that the licence was fake then also, in order to avoid liability, the appellant Insurance Company would be required to prove that the owner of the insured vehicle knowingly permitted his vehicle to be driven by a person having a fake licence. No such plea was taken either before the Tribunal or in the application filed before this Court under Order 41, Rule 27 C.P.C. Thus, even if the fact that the licence held by the driver was fake is proved then too, the appellant Insurance Company would not be able to escape liability of satisfying the award because it has not taken a plea that the owner knowingly permitted the vehicle to be driven by a person having a fake licence. 8. Accordingly, the application filed by the appellant Insurance Company under Order 41, Rule 27 C.P.C. as well as the appeal are both without merit and are hereby rejected.Appeal and application dismissed. *******