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2016 DIGILAW 1184 (RAJ)

New India Assurance Company Ltd. v. Asha

2016-08-16

ARUN BHANSALI

body2016
JUDGMENT Arun Bhansali, J. This appeal is directed against judgment and award dated 25.08.2001 passed by Motor Accident Claims Tribunal, Bikaner (‘the Tribunal’), whereby, the Tribunal has awarded a sum of Rs. 2,90,000/- as compensation to the claimants along with interest @ 9% per annum from the date of application i.e. 18.12.1998 till date of realization and appellant Insurance Company has been held liable for payment of compensation. 2. The application for compensation was filed by the claimants on account of death of their son Lal Chand, who was going on a cycle and was struck by Truck No. GJ-6T-3181. The claimants claimed a compensation of Rs. 36,20,000/-. 3. The application was resisted by the driver, who was also the owner of the vehicle, who disputed the fact that the vehicle was being driven rashly and negligently. It was claimed that he was in possession of valid driving licence and papers and liability, if any, was that of the Insurance Company. 4. The Insurance Company filed its reply and disputed its liability mainly on account of the fact that the driving licence of the driver/owner was fake. It was indicated in the reply that from the report of the surveyor, which was obtained from the Licencing Authority, Gwalior dated 18.08.1999, it was proved that the licence J-49515/GWL/84 was fake. 5. Based on the averments of the parties, the Tribunal framed five issues. On behalf of the claimants three witnesses were examined. On behalf of the Insurance Company NAW-1 – Praveen Rajapurkar, In charge Licence Section, RTO, Gwalior and NAW-2 – Suresh Chand Pathak, Assistant Administrative Officer of the Insurance Company were produced. 6. After hearing the parties, the Tribunal came to the conclusion that accident occurred on account of rash and negligent driving by the driver of the Truck. The issue pertaining to the quantum of compensation was determined in the nature that the claimants were held entitled to a sum of Rs. 2,90,000/-. While deciding the issue pertaining to the liability of the Insurance Company, the Tribunal came to the conclusion that the Policy (Exhibit-NA 4) was not the original Policy and, therefore, the Insurance Company could not contend that any of its condition was violated. Reliance was placed on the judgment of this Court in National Insurance Company Ltd. v. Laxmi and ors. : 2001 DNJ (Raj.) 371. 7. Reliance was placed on the judgment of this Court in National Insurance Company Ltd. v. Laxmi and ors. : 2001 DNJ (Raj.) 371. 7. The Tribunal also came to the conclusion that from the evidence of Praveen Rajapurkar (NAW-1) it cannot be accepted that the licence (Exhibit-NA 5) was fake and based on its findings it found the Insurance Company liable for payment of compensation. 8. It is submitted by learned counsel for the appellant that from the evidence of the two witnesses NAW-1 Praveen Rajapurkar, who was from the Licencing Authority, Gwalior, documents produced by him and that of NAW-2, the Officer of the Insurance Company, it is proved that the licence in question was fake and as the owner himself was driving the vehicle, the Insurance Company cannot be held liable. It was submitted that the findings of the Tribunal regarding non-production of the original insurance policy is baseless, inasmuch as, the cover note (Exhibit-NA 4) was produced and so far as the requirement of having a valid driving licence by the driver is concerned, the same was clearly indicated on the said cover note itself and, therefore, the non-acceptance of the violation of policy condition on the said ground cannot be sustained. It was further submitted that from the evidence produced on record, it was proved that no licence, as claimed by the driver i.e. licence No. J-49515/GWL/84 was issued by the Licencing Authority on the date when it is claimed to have been issued and the material in this regard was produced on record and, therefore, the determination of the Tribunal to the contrary cannot be sustained and, consequently, the findings recorded by the Tribunal in this regard deserves to be set aside. 9. Learned counsel for the respondents-claimants supported the award impugned. It was submitted that merely production of cover note does not fulfil the requirement of producing the Policy and, therefore, the Insurance Company cannot rely on violation of any Policy condition; none of the relevant witnesses with regard to the alleged fake licence were produced; the report (Exhibit-NA 3) was not properly proved as the same was merely adduced without examining the person, who obtained the report and/or the Licencing Authority, which made the endorsement on the said letter; in absence of any admissible evidence, the Tribunal was justified in holding against the appellant Insurance Company. In the alternative, it was submitted that even if the plea of the Insurance Company is accepted, the Insurance Company be directed to make payment of the amount of compensation and it may be left free to recover the same from the owner/driver of the vehicle. It was prayed that the appeal be dismissed. Reliance was placed on National Insurance Co. Ltd. v. Swaran Singh and ors. : (2004) 3 SCC 297 . 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. So far as the determination of Tribunal regarding the Insurance Company not entitled to raise the plea of lack of valid driving licence in absence of Policy is concerned, besides the fact that such a plea essentially is not available looking to the clear statutory position regarding requirement of holding a valid driving licence, the cover note produced as (Exhibit-NA 4) clearly stipulates as under:- “Persons or classes of persons entitled to drive: Any person incl. insured provided that a person driving holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence provided also that the person having an effective learner licence may also drive the vehicle as such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles rules, 1989.” 12. The above stipulation clearly required that the driver must be holding an effective driving licence at the time of accident and in view of the above stipulation the reason given by the Tribunal cannot be sustained. 13. So far as placing reliance on the judgment in the case of Laxmi (supra) is concerned, in the said case the dispute pertained to the limit of liability and for that purpose it was laid down that in absence of original policy, the Insurance Company was not entitled to claim a limited liability. The said judgment even otherwise had no application to the facts of the present case, where, the defence pertained to lack of valid driving licence. 14. Coming to the finding pertaining to the aspect that driving licence of the owner-driver Joginder Singh was fake, the appellant Insurance Company based on its inquiry from the concerned Regional Transport Office took a specific plea in this respect before the Tribunal that the licence was fake. 14. Coming to the finding pertaining to the aspect that driving licence of the owner-driver Joginder Singh was fake, the appellant Insurance Company based on its inquiry from the concerned Regional Transport Office took a specific plea in this respect before the Tribunal that the licence was fake. While leading its evidence, the Insurance Company examined Praveen Rajapurkar, NAW-1, who was Assistant Gr.II of the RTO, Gwalior. The said witness specifically exhibited documents Ex.NA-1A and Ex.NA-2A, which pertain to register of driving licence, wherein, licence Nos. J-4151 and J-4152 were issued on 22.02.1984 & 24.02.1984, respectively, whereas, the licence in question was claimed to have been issued by the said RTO on 23.02.1984 as licence No. J-49515/84. In view thereof, the said documents clearly illustrated that between 22.02.1984 and 24.02.1984, on 23.02.1984 in fact no licence in 'J' series was issued. The said two documents exhibited by NAW-1 were sufficient to prove that the licence in question i.e. Ex.NA-5 was fake. 15. Besides the above, document Ex.NA-3, which was the report given by Licencing Authority, Gwalior was also exhibited, wherein, it was clearly indicated that licence No. J-49515 was not issued by the said office and that on 23.02.1984 in 'J' series register no licence was issued. 16. In view of the above evidence, the Tribunal was not justified in coming to the conclusion that the aspect of licence being fake was not established. The reasons indicated by the Tribunal that Ashok Gupta, Surveyor, who obtained the report, was not examined, therefore, the report Ex.NA-3 cannot be relied on, is not sustainable inasmuch as the witness (NAW-1) from the RTO clearly identified the signatures of the Licencing Authority in his statement and it was the endorsement of the Licencing Authority which was of significance and not the person, who procured the report, which had any significance. The other ground indicated by the Tribunal that as NAW-1 Praveen Rajapurkar is not the person, who had issued the licences in the year 1984, his evidence cannot be relied on, also cannot be sustained inasmuch as the statements were recorded on 07.06.2001 and to expect a party to get the statement recorded of an officer, who had worked in the office 17 years back is expecting something which is wholly undesirable in law and, therefore, on that count also the finding recorded by the Tribunal cannot be sustained. 17. 17. From a bare look at the documents NA-1A and NA- 2A, it is apparent that the licence in question, which is claimed to be J-49515/84 is fake and, therefore, the Insurance Company cannot be saddled with the liability to make payment of amount of compensation. 18. In view of the above discussion, the finding of the Tribunal on issue No. 3 is reversed and it is held that on account of licence in question being fake, the Insurance Company is not liable to make payment of amount of compensation. However, the plea raised by the counsel for the respondent-claimants regarding direction to the Insurance Company to pay and recover deserves consideration. 19. Admittedly, the deceased is a third party and died on account of the accident from the vehicle, which was insured with the appellant Insurance Company, though was being driven by its owner, who was in possession of a fake licence. 20. Hon'ble Supreme Court in the case of Swaran Singh (supra) while considering the aspect of pay and recover observed and inter alia directed as under:- 83. Sub-section (5) of Section 149 which imposes a liability on the insurer must also be given its full effect. The insurance company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does not mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to. Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-section (1) thereof. The right to avoid liability in terms of sub-section (2) of Section 149 is restricted as has been discussed hereinbefore. The said provision must be read with sub-section (1) thereof. The right to avoid liability in terms of sub-section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading. 110. The summary of our findings to the various issues as raised in these petitions is as follows: (i) .... (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 Section 168 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. 21. In view of the above, the submission by the claimants deserves acceptance. 22. 21. In view of the above, the submission by the claimants deserves acceptance. 22. In view of the above discussion, the appeal filed by the appellant Insurance Company is partly allowed, the impugned award dated 25.08.2001 is modified to the extent that the Insurance Company is exonerated from the liability to pay compensation in terms of the award, however, it would be required of the appellant Insurance Company to pay the amount of compensation to the claimants in terms of the award and then recover the same from the owner of the vehicle-respondent No. 3 – Joginder Singh in accordance with law as laid down by Hon’ble Supreme Court in the case of Swaran Singh (supra). The compensation in terms of the award be paid to the claimants in their saving bank accounts within a period of six weeks from the date of this judgment. No order as to costs.