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2014 DIGILAW 668 (RAJ)

New India Assurance Co. Ltd. v. Sunderlal

2014-03-07

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal is directed against the judgment cum award dated 6.8.1998 passed by the learned Judge, Motor Accident Claims Tribunal, Bikaner in MAC No.28/1994 whereby the claim application filed by the appellant under Section 166/163A of the Motor Vehicles Act was allowed and the claimant respondent Sundar Lal was awarded a total sum of Rs. 1,02,000/- on account of death of his son Ram Kishan in a vehicular accident. 2. Facts in brief are that a claim application was filed by Sundar Lal in the court of the learned Motor Accident Claims Tribunal, Bikaner. As per the averments made in the claim application, Sundar Lal alongwith Ramkishan was passing by the road Rani Bazar, Bikaner on a bicycle on 2.11.1993. At that time, a truck bearing registration No.RRF{ 2025 being driven at a great speed came from behind and hit the bicycle and as a result thereof, Ramkishan fell down from bicycle and sustained injuries resulting into his death. Sundar Lal by filing an application under Section 166 of the Motor Vehicles Act before the Tribunal, claimed a compensation of Rs. 4,46,650/- as damages for the death of his young unmarried son. It was mentioned in the claim application that Ramkishan was doing a job of radium polish on gold and silver jewellery and was earning a sum of Rs. 1000/- per month. 3. In reply to the claim application, the insurance company took the following defenses (i) that the driver of the truck was not having a valid licence to drive the truck, (ii) that the claimant was himself responsible for the accident and thus, was not entitled to compensation. 4. The Tribunal decided the issue regarding the rashness and negligence of the truck driver being cause of the accident in favour of the claimant. The defences raised by the insurance company were found untenable and were decided in favour of the claimant. The issue No.2 regarding the income of the deceased was decided against the claimant. Considering the criterion of suffering for pain, mental agony, funeral expenses and other heads, a total award of Rs. 1,02,000/- was passed in favour of the claimant. The insurance company has approached this Court seeking reduction therein and for being exonerated from the liability of satisfying the award. 5. Considering the criterion of suffering for pain, mental agony, funeral expenses and other heads, a total award of Rs. 1,02,000/- was passed in favour of the claimant. The insurance company has approached this Court seeking reduction therein and for being exonerated from the liability of satisfying the award. 5. Learned counsel for the appellant insurance company submitted that the licence, which was being held by the driver of the truck was fake and fabricated and therefore, the view taken by the Tribunal that the truck driver was having a valid licence to drive the vehicle is totally illegal and deserves to be set aside. He referred to the certificate Ex.A2 issued by Deepak Sood the investigator of the insurance company as per which, licence held by the driver was not issued by the office of the Registrar and licencing authority, Solan, Himachal Pradesh. Learned counsel submits that the insurance company examined Mohd. Faruq NAW2 to prove the investigator's report Ex.A2 prepared by Deepak Sood and alongwith the same, the certificate issued by the licencing authoirity, Solan was also proved showing that the licence was forged. He thus urged that as the driving licence held by the driver was a fake one, the appellant insurance company was wrongly burdened with the responsibility to satisfy the award. However, the quantum of award was not challenged very seriously by the learned counsel for the appellant. He relied on the decision rendered by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Lehru & Ors., reported in AIR 2003 SC 1292 . 6. Per contra, Shri M.C. Bishnoi learned counsel for the respondents non-claimants submitted that the insurance company did not examine any person from the office of the licencing authority Solan to prove the certificate Ex.A3 allegedly issued by the licencing authority Solan. He relied on the decision rendered by the Hon'ble Supreme Court in the cases of Pepsu Road Transport Corporation v. National Insurance Co. reported in 2013 DNJ(SC) 736 : AIR 2014 SC 305 and submitted that the owner cannot be expected to go to the extent of verifying the genuineness or otherwise of the licence from the licensing authority. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Tulna Devi & Ors. reported in 2009 ACJ 581 . Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Tulna Devi & Ors. reported in 2009 ACJ 581 . It was thus submitted that the appeal being without merit deserves rejection. 7. I have given my thoughtful consideration to the arguments advanced at the bar and perused the record. 8. The burden of proving the defence taken by the appellant insurance company regarding the liability of the owner on the ground of fake licence was on the insurance company. The insurance company did not produce any material on the record of the case to prove that the owner gave his consent for driving his vehicle to the driver Mahendra Singh, knowing that he was haivng a fake licence. The Hon'ble Supreme Court in the case of Tulna Devi and Pepsu (supra) held that positive evidence has to be led by the insurer to show that the owner had not taken due care to ascertain the genuineness of the driving licence before the vehcile was given to the driver to drive it. The case at hand also reveals almost the similar facts. It cannot be expected from the owner to go to the extent of verifying the genuineness of a licence from the licencing authority because faith has to be expressed in a document, purported to have been issued by the Government Authority to the owner, which is presented. Once the driver submits a licence to the owner then a prima-facie belief has to be placed regarding the same being genuine. No sane man would risk by handing over his vehicle to a person having a fake licence knowingly. The insurance policy was a third party or an Act Only Policy. Thus, the same does not cover the risks upon damage to the vehicle itself. The owner thus would not deliberately and knowingly give his vehicle to a person holding a fake licence because in the event of any accident being caused, the vehicle also is likely to be damaged and the insurance company in any event would not be covering the damages thereof. The owner himself stands to loose if damage is caused to the vehicle. It is not a case that the driver did not possess any licence at all so as to give rise to a presumption of negligence against the owner. The owner himself stands to loose if damage is caused to the vehicle. It is not a case that the driver did not possess any licence at all so as to give rise to a presumption of negligence against the owner. The case squarely stands covered by the judgments rendered by the Hon'ble Supreme Court in the aforesaid two cases of Pepso and Tulna Devi (supra). 9. The Hon'ble Supreme Court in the case of Lehru (supra) observed as under:- "20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTO's, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party,but it may be able to recover from the insured. This is the law which has been laid down in Skandia's, Sohan Lal Passi's and Kamla's case. We are in full agreement with the views expressed therein and see no reason to take a different view." 10. Thus, the prima-facie burden of proving that the owner knowingly permitted the vehicle to be driven by a driver holding a fake licence is on the appellant insurance company. The Insurance Company failed to discharge its burden in the present case. Thus, the prima-facie burden of proving that the owner knowingly permitted the vehicle to be driven by a driver holding a fake licence is on the appellant insurance company. The Insurance Company failed to discharge its burden in the present case. Thus, the Tribunal was justified in holding the {7} insurance company responsible to satisfy the award jointly and severally with the owner and driver of the offending vehicle. 11. The appeal is thus without any merit and is hereby rejected.Appeal dismissed. *******