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2016 DIGILAW 766 (RAJ)

Tata AIG General Insurance Co. Ltd. v. Gita Devi

2016-05-26

GOVERDHAN BARDHAR

body2016
JUDGMENT : Mr. Goverdhan Bardhar, J. Instant appeal has been filed by the appellant insurer against the award dated 08.02.2016 passed by the Motor Accident Claims Tribunal, Nathdwara in Claim Case No. 09/2012 awarding compensation in the sum of Rs. 5,98,400/- to the claimants. 2. Succinctly stated facts of the case are that the claimant filed a claim petition to the effect that on 24.09.2011 at 9:00 AM in the morning, Jagdish and Heera lal were going on the motorcycle on National Highway no.8, one Troller No. RJ 27 GA 7282 coming from Nathdwara hit the motorcycle due to which Jagdish suffered grievous injuries and died on the spot. The said vehicle was insured with the appellant company and the vehicle was being driven by driver Shambhu Singh, respondent no.5. 3. The learned Tribunal while deciding the Issue No.1 in favour of the claimants held that the driver Shambhu Singh was rash and negligent in driving which caused the accident resulting in death of Jagdish. Accordingly, the learned Tribunal awarded a compensation in the sum of Rs. 5,98,400/- in favour of the claimants. 4. Learned counsel for the appellant Insurance company contends that the learned tribunal has committed an error in deciding Issue no.2 with regard to violation of the terms and conditions of the policy. It is contended that as per terms of the policy, the driver must hold valid licence at the time of accident to drive the vehicle but upon investigation by the appellant company, it was found that the driving licence No. MH01/2002/66885 which is issued by Regional Transport Officer, Mumbai Central in favour of respondent no.5 driver was fake and not issued by Mumbai RTO and since the driving licence was forged/fake, therefore, the appellant Insurance company is not liable to pay compensation and it has to be borne by the respondent no.5 & 6. Learned counsel for the appellant further argued that the appellant Insurance company had produced the investigation report but the learned Tribunal did not consider the same. It is further argued that if the finding on issue No.2 regarding validity of the driving licence is decided in favour of the appellant, the liability to pay compensation will not come on the shoulders of the appellant company but it will have to be borne by the non applicants i.e. driver and owner of the vehicle. 5. It is further argued that if the finding on issue No.2 regarding validity of the driving licence is decided in favour of the appellant, the liability to pay compensation will not come on the shoulders of the appellant company but it will have to be borne by the non applicants i.e. driver and owner of the vehicle. 5. Heard learned counsel for the appellant and perused the record. 6. It is an admitted fact that the vehicle in question was insured with the appellant Insurance company. The contention of the appellant Insurance company is that since the driver of the vehicle was having a forged/fake licence, therefore, the appellant company is not liable to make compensation. It is pertinent to note that in the reply to the claim petition filed by the Insurance company, it was pleaded that non-applicant driver was not having a valid driving licence and same was forged. Thus, according to the appellant company, the licence in the name of Shambhu Singh was forged one. 7. Learned Tribunal while deciding Issue No.2 has categorically observed that the appellant company has although submitted the report of investigator and stated that the clerk of RTO told him that the serial number of licence does not match with record but the appellant company did not produce either the investigator or the RTO record. 7. Learned Tribunal while deciding Issue No.2 has categorically observed that the appellant company has although submitted the report of investigator and stated that the clerk of RTO told him that the serial number of licence does not match with record but the appellant company did not produce either the investigator or the RTO record. Further, the learned tribunal while deciding Issue No.2 in para no.18 of the judgment and award has given following finding:- ^^18- izdj.k esa izn'kZ , 1 chek ikWfylh izn'kZ , 2 ,e0ds0 tkapdrkZ dh fjiksVZ gS ysfdu mDr fjiksVZ djus okys dks chek daiuh }kjk viuh lk{; esa izLrqr ugha fd;k x;k gS rFkk fjiksVZ esa Hkh fjiksVZ dk vk/kkj vkj0Vh0vks0 vkWfQl ds fjdkMZ DydZ dks crk;k x;k gS ysfdu u gh vkj0Vh0vks0 dk fjdkMZ gh izLrqr fd;k gS rFkk u gh vf/kd`r :i ls dksbZ vkj0Vh0vks0 ds }kjk dksbZ Mh0,y0 ds izek.khdj.k dh dksbZ fjiksVZ gh i=koyh esa izLrqr dh x;h gS o ftjg esa Hkh xokg ,u,M 1 jktho us dgk gS fd ;g ckr lgh gS fd izn'kZ , 3 esa , ls ch Hkkx esa vkj0Vh0vks0 dk i`"Vkadu gS ysfdu lhy vafdr ugha gSA ;g ckr lgh gS fd izn'kZ , 3 esa ;g i`"Bkadu fdl O;fDr us fd;k ;g eq>s irk ugha gS vt[kqn dgk fd vkj0Vh0vks0 dk gSA geus bUosLVhxsVj dks c;ku ds fy, ugha cqyk;kA vt [kqn dgk fd vk;Unk cqyk;saxsA izn'kZ 3 vkj0Vh0vks0 }kjk tkjh ugha fd;k x;k bl ckcr tkapdrkZ dks vkj0Vh0vks0 us fy[kdj ugha fn;k fd izn'kZ 3 muds ;gka ls tkjh ugha fd;k x;kA ;g ckr lgh gS fd izn'kZ , 3 QthZ gks bl ckcr iqfyl esa dksbZ fjiksVZ ntZ ugha djkbZA** 8. Thus, the learned tribunal concluded that if the driving licence was allegedly fake or forged, then it was the duty of the Insurance company to prove the same but the appellant Insurance company has failed to prove that the licence of the driver was forged. In the opinion of this Court, the aim and purpose of the provision for compulsory third party risk is that an Insurance company would be available to pay the compensation and in order to avoid liability, it is not sufficient to show that the person driving at the time of accident was not duly licensed but the Insurance company must establish that the breach was on the part of the insured. As far as the licence of driver being forged is concerned, in the first instance, the appellant Insurance company has failed to prove that the licence of the driver was fake or forged and secondly, even if ultimately the licence turns out to be fake then also the insurance company would continue to remain liable unless it is proved that the owner/insured was aware or had noticed that the licence was fake and still permitted and hired that person to drive the vehicle, which is not the case in this appeal. 9. Hon'ble Supreme Court in the case of ‘United India Insurance Co. Ltd v. Lehru & Ors’ reported in (2003) 3 SCC 338 has held that the owner is not expected to find out whether the licence has in fact been issued by the competent authority or not and the Insurance company cannot expect owners to make enquiries with RTOs 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). Thus, the Insurance cannot be absolved of the liability vis-a-vis third party on the pretext that the licence is found to be fake or forged as per report of the Surveyor/Investigator of the Insurance company. 10. In view of above, I find no error in the impugned order dated 08.02.2016 passed by the learned Motor Accident Claims Tribunal, Nathdwara. Hence, this appeal is hereby dismissed.