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2014 DIGILAW 936 (PNJ)

Mukesh Khosla v. Amandeep Kaur

2014-05-30

JITENDRA CHAUHAN

body2014
Jitendra Chauhan, J. 1. The appellant-owner has preferred the above noticed two appeals against the common impugned award dated 11.04.2011, passed by the learned Motor Accident Claims Tribunal, Jalandhar, (for short, 'the Tribunal'), thereby, granting recovery rights to the respondent-National Insurance Company Limited (for short, 'the Insurance Company'), against the appellant. Briefly stated facts of the present case are that on 02.05.2007, Balbir Singh, since deceased, along with Raman Kumar, injured-appellant, while driving motorcycle bearing registration No. PB-08-AC-6093, was coming from Lamba Pind Pathankot Chowk to his residence in New Gobind Nagar. At about 12.15 p.m., when they reached near the flyover of Pathankot chowk on Jalandhar-Amritsar road, the motorcycle driven by Balbir Singh struck against the rear portion of a stationary truck bearing registration No. PB-08-AY-9691, which was parked on the bridge without any safety indication. As a result thereof, both the occupants of the motorcycle fell down. Balbir Singh, the driver, died on the spot, whereas, Raman Kumar, who was the pillion, received serious injuries. The injured was removed to the hospital. A DDR was recorded at police station Division No. 8, Jalandhar. In this background, two claim petitions were filed before the learned Tribunal, which were decided in favour of the claimants and against the respondents vide the impugned Award. 2. The twofold arguments raised by the learned counsel for the appellant are that (i) the owner of the offending Truck had observed due diligence at the time of engaging the offending driver in verifying that he was duly licensed to drive the offending vehicle and therefore, recovery rights ought not have been granted to the Insurance Company; (ii) the deceased while driving the motorcycle, struck against the stationary truck parked on the road from the rear side. Therefore, it is a case of contributory negligence. In support of his first contention, the learned counsel has placed reliance on National Insurance Company Ltd. v. Swaran Singh, 2004(3) S.C.C. 297 and United India Insurance Company Ltd. v. Lehru, 2003(2) R.C.R. (Civil) 278 (S.C.). 3. On the other hand, the learned counsel for respondent-Insurance Company has argued that it has been proved on record that the original driving licence was a fake document and therefore, the subsequent renewal thereof, is of no consequence. 3. On the other hand, the learned counsel for respondent-Insurance Company has argued that it has been proved on record that the original driving licence was a fake document and therefore, the subsequent renewal thereof, is of no consequence. Except the statement of RW3, Harpal Singh, the alleged manager of the appellant-owner, there is nothing to show that the appellant had satisfied himself with regard to the genuineness of the driving licence of the driver of the offending truck. 4. I have heard learned counsel for the parties and perused the record. 5. In the instant case, Amarjit Kaur, Clerk, DTO Hoshiarpur, was examined as RW1. She deposed that driving licence No. 3941 dated 21.10.2008, was issued in the name of Balwinder Singh, which was valid upto 19.03.2009. Earlier, the licence was bearing No. 14027/R/05/06, which was also issued in the name of Balwinder Singh and valid upto 19.09.2009. Prior to this, the licence No. 3669/R/01/02, as per the record, had been issued in the name of Gurdial Singh son of Mehtab Singh and not in the name of the offending driver, Balwinder Singh, the driver of the offending vehicle. The photocopy of the driving licence is available on record as Ex. R1, whereas, the verification report of the Licensing Authority is placed on record as Ex. R2. Thus, it is evident that driving licence, Ex. R-1, purported to be issued to the offending driver, was a fake document, though renewed by the authority. But mere renewal of a fake document cannot render the same a genuine one. 6. In Swaran Singh's case (supra), Hon'ble the Apex Court observed as under:-- "The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section149(2) of the Act. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 7. In the light of the above observations of the Hon'ble Apex Court, the question which now arises for determination is that whether the appellant-owner had taken reasonable care to find out as to whether the driving licence produced by the driver was a genuine one. In order to discharge his onus, the appellant produced Harpal Singh, stated to be the Manager of the appellant-owner, as RW3. He stated by way of his affidavit, Ex. RW3/A, that he along with Mukesh Khosla, the appellant/owner, had seen the driving licence of Balwinder Singh, which carried signatures and seal of the office of District Transport Officer, Hoshiarpur. Only thereafter, they had engaged Balwinder Singh as driver. However, Harpal Singh appears to have been deliberately introduced as a witness and there is nothing on record to show that this witness was in the employment of the appellant-owner at the relevant time. Thus, the evidence brought on record by the appellant is insufficient and not credible to prove that he had observed due care and caution before engaging the driver. Thus, it is a case of violation of the terms and conditions of the policy and the insurer has been rightly awarded recovery rights against the insured. Thus, the evidence brought on record by the appellant is insufficient and not credible to prove that he had observed due care and caution before engaging the driver. Thus, it is a case of violation of the terms and conditions of the policy and the insurer has been rightly awarded recovery rights against the insured. Furthermore, for the reasons best known to the appellant, he chose not to step into the witness box, thereby not only giving up his own valuable right to contend that he verified the authenticity of the DL of the offending driver but also deprived the insurer of his to cross-examine him. Besides this, the argument raised by the learned counsel for the appellant regarding the present case involving a question of contributory negligence, becomes unsustainable in view of the written statement of the appellant filed before the learned Tribunal, where the plea of contributory negligence was not raised by him. 8. In view of the above discussion, this Court is of the considered opinion that the learned Tribunal has rightly awarded recovery rights to the Insurance Company. 9. Consequently, the present appeals are hereby dismissed. 10. The statutory amount deposited along with this appeals be remitted to the Tribunal for disbursement. 11. Before parting, this Court would like to highlight the following in the interest of the road users, who become victim of unscrupulous drivers. 12. On 07.09.2011, the following order was passed by this Court:-- "Present: Mr. Puneet Sharma, Advocate, for the appellant. *** The learned counsel contends that the appellant exercised due care and diligence while appointing respondent No. 7 as driver. The driver was holding the licence issued by the D.T.O. Hoshiarpur, which was subsequently renewed by the Registering Authority, Hoshiarpur. However, on verification, the licence held by the driver was found to be fake. Cites National Insurance Co. Ltd. v. Swaran Singh and others, (2004)3 S.C.C. 297 . Notice of motion for 30.09.2011. Record be requisitioned in the meantime. The Executing Court is directed to adjourn the proceedings beyond the date given by this Court. During the course of present Roster, this Court has come across a large number of appeals (FAOs) pertaining to motor accident compensation claims in which the concerned MACT has recorded a categorical finding regarding the driving licence in question being fake. The Executing Court is directed to adjourn the proceedings beyond the date given by this Court. During the course of present Roster, this Court has come across a large number of appeals (FAOs) pertaining to motor accident compensation claims in which the concerned MACT has recorded a categorical finding regarding the driving licence in question being fake. In most such cases, the driving licence has initially been issued by an outside authority but subsequently renewed by an authority in the state of Punjab or Haryana or the Union Territory of Chandigarh. What is alarming is that in such cases, the driver in question has been able to secure an employment under the State as also under the private employer on the basis of a renewed licence in the States of Punjab or Haryana but which is actually fake, apparently issued by an outside authority. It is relevant to highlight that in cases as mentioned above, the offending driver conveniently chooses not to appear before the MACT to rebut the allegations of negligence or put forth any defence, leaving it out for the State Government or the employer and the Insurance Company to spar against each other regarding the issue of liability to pay the determined compensation. This Court has further observed that in such like cases, no effort is made either to punish the official who has renewed the driving licence without prior verification or the driver in question, who is patently guilty of working on a fake licence. This state of affairs has attracted the attention of this Court in the most serious manner possible. It would not be out of place to mention that the roads would be a much safer place, if only the duly authorized persons could drive on the roads. In the larger interest of innocent commuters, both who hold a valid driving licence and those who are carried by others, it is imperative to take urgent remedial as well as preventive measures to address the concerns as highlighted above. In this regard, the Governments of the States of Punjab and Haryana, and the Administrator of Union Territory of Chandigarh, are directed to place on record any initiative taken to this end in the form of a Report. In this regard, the Governments of the States of Punjab and Haryana, and the Administrator of Union Territory of Chandigarh, are directed to place on record any initiative taken to this end in the form of a Report. The Report should highlight if there is any existing mechanism to address the issues raised above or in the absence of the same, what kind of mechanism can be put in place to address the issues raised. The report may also consider the possibility of creating a linkage between the MACTs and the State Government/Administration concerned for effective co-ordination regarding such matter e.g. exchange of information, regarding validity of licences. In addition, the State Governments as also the Administrator shall also furnish a list of cases coming before the MACT in the states of Punjab, Haryana and U.T. of Chandigarh in the preceding 3 years in which a finding of fact has been recorded regarding fake driving licence being held by the offending drivers. The list should also contain information as to what action has been taken by the concerned State Governments/Administration against the delinquent officials who have not acted diligently and renewed a fake driving licence as also the action taken against the offending drivers. A copy of this order be given dasti under the signatures of the Special Secretary of this Court, to Mr. Ajay Gulati, DAG, Haryana; Mr. Amit Chaudhari, AAG, Punjab; and Mr. Sanjay Kaushal, Senior Standing Counsel, U.T. Chandigarh; for onward transmission and compliance." 13. Upon service of the aforesaid order dated 07.09.2011, responses were received from the Union of India, the States of Punjab and Haryana as well as the Union Territory of Chandigarh. In the light of these responses and after hearing learned counsel appearing on behalf of the States of Punjab and Haryana, Union Territory of Chandigarh, as well as Union of India, the following remedial measures to overcome such situations are being suggested:-- 1. The Union of India should create a mechanism where the licences issued throughout the country shall be verifiable by all the State authorities. This could be in the form of a software which is accessible by the State Authorities as well as the Central Government. 2. The Union of India should create a mechanism where the licences issued throughout the country shall be verifiable by all the State authorities. This could be in the form of a software which is accessible by the State Authorities as well as the Central Government. 2. In the cases, where the licence is found to be fake in MACT proceedings, even if the driver is acquitted in the criminal trial under Section 279, 304 IPC, the State is under obligation to file complaint or register an FIR, under appropriate Sections (Sections 420, 467, 468, 471 IPC, etc.), for prosecuting such driver. 3. Where the driving licence of the driver is found to be fake in the MACT proceedings, the Tribunal is required forward a copy of the judgment to the police for initiating criminal proceedings against the driver. 4. The particulars of such a driver would be circulated to the registration authorities as far as possible or a system (agency) should be created to put the name of all such black-listed drivers. 5. Where it comes to the notice of the Tribunal during the proceedings that the driver has more than one licence, the Tribunal will take immediate notice of the same and recommend to the concerned police authorities to register FIR under relevant sections against such driver. In such a situation also, the name of such a driver should be put in the software, as suggested above, for verification. 6. After appointment/engaging of a driver, the owner shall seek information under the RTI Act/or any other provision available immediately regarding the genuineness of the driving licence from the office of issuing authority within thirty days from the date such appointment/engagement. 7. In case, the employer is illiterate or does not understand, read or write the language used in the licence, such an employer shall get the licence verified from the instructor of an approved driving school wherever the driver is shown to be resident of one State/place and that address is mentioned in the application for grant of Driving Licence or through concerned Suvidha Centre. The Licensing Authority of the other State/place, if feels fit to issue driving licence to such person who is domicile of another State, it must record reasons to issue driving licence contrary to the spirit of act by holding that such applicant falls under the provisions of law to be issued Driving Licence by that authority. This process for verification of the Driving Licence of driver can be further simplified if the suggested software can have a public window/interface, wherein, private citizens can log into the software and by entering the details of the driving licence, can get a printed verification report regarding the authenticity of the Driving Licence. A copy of this judgment be sent to the Cabinet Secretary to the Union of India, the Chief Secretaries of Punjab and Haryana, the Advisor to the Administrator of U.T. Chandigarh, as well as the Law Commission of India, and the Motor Accident Claims Tribunals set up in the States of Punjab and Haryana, and U.T. Chandigarh, for necessary action.