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2016 DIGILAW 130 (UTT)

New India Assurance Company Ltd. v. Vimla Devi

2016-03-19

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. Mr. T.A. Khan, learned Senior Counsel appearing for the appellant-Insurance Company, urges that the matter could not be compromised in National Lok Adalat because the vehicle was being plied at the relevant time on the strength of a fake driving licence. The Court has heard the matter and has perused the evidence available on record in order to adjudicate the same. It transpires that a passenger bus no.UA-07-E-1075 was swerved from the main road on 09.09.2006 while was on way from Paligharh to Vikas Nagar and fell down in the fast flowing Yamuna River, resulting into the death of many passengers along with its driver. Mr. Balbir Singh was one of them, who also succumbed to serious injuries on account of the accident at the age of 42 years. So, the Claim Petition was filed by octogenarian mother of the deceased as well as his younger brother. Tribunal has awarded the compensation to the tune of Rs.1,22,000/- with 8% simple annual interest. Such amount was deposited by the Insurance Company in compliance of this Court order dated 19.01.2009. Learned Senior Counsel for the Insurance Company has based all contentions solely on the premise that the driver of the bus did not have any valid driving licence, so it was wholly unjustified to fasten the liability upon the Insurance Company with recoverable rights from the owner. Learned Senior Counsel has submitted that co-ordinate Bench of this Court has held that the liability is fastened upon the Insurance Company with recoverable rights as unjustified because in such matters, liability should be fastened always upon the vehicle owner and later on, this view was affirmed by the Hon’ble Apex Court. On this score, the Court does agree with the contention of learned Senior Counsel but at the same time, the circumstances and scenario of the accident should be visualized. It is assumed that the driver of the vehicle, normally keeps his driving licence with him at least when he is driving the motor vehicle in order to save himself from checking of the Transport Authorities in addition to the Police. It is assumed that the driver of the vehicle, normally keeps his driving licence with him at least when he is driving the motor vehicle in order to save himself from checking of the Transport Authorities in addition to the Police. If the vehicle owner could not produce the driving licence before the Tribunal showing its validity in the peculiar facts of the case, then assumption regarding its invalidity cannot be assumed by the Tribunal because assumption in such eventuality should always be in positive and not in negation, until and unless, such negativity is proved by the Insurance Company. Insurance Company could not prove such negation or invalidity of the driving licence during the pendency of the Claim Petition before the Tribunal and its application to produce the driving licence of the driver under Order 41 Rule 27(aa) of CPC has been rejected by the co-ordinate Bench of this Court on dated 07.07.2009 by a speaking order. So, now this contention of learned Senior Counsel cannot be accepted. More so, because in all probabilities, it can be accepted that the driving licence, present with the driver, could not be traceable because the dead body of driver swept away with strong current stream of river. How it could be possible for the Investigator of Insurance Company to find out that at the relevant time Mr. Deepak Kumar was the driver of bus and his driving licence was fake? In view of what has been set forth above, I dismiss the appeal, filed by the Insurance Company. The amount, deposited by the Insurance Company, will be reimbursed to the claimant Smt. Vimla Devi. Since, Smt. Vimla Devi was a very old woman, touching 80 years of her age, hence, the possibility may not be ruled out about her passing away. In that eventuality only, the amount shall be paid to the claimant no.2 Mr. Vijay Singh without asking any surety or security. Such amount must have been in the account of learned District Judge/Presiding Officer of Tribunal, Uttarkashi, so the same be reimbursed to the claimant with 3% simple annual interest. Rs.25,000/- compulsory statutory amount, deposited by the Insurance Company, shall also be remitted back to the Tribunal concerned, which will also be reimbursed to the claimant, as indicated above.