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2019 DIGILAW 1500 (HP)

Hari Ram v. Jamuna Devi

2019-10-04

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Owner of the vehicle is in appeal against an award where-under liability to pay the awarded amount, in the first instance was though fastened upon the Insurance Company, but it was held entitled to recover the same from the owner and driver in accordance with law. 2. Facts:- 2(i) An accident occurred on 30.10.2015, involving Trucks bearing No. HP-11-5104 & HP-11-5448 near Petrol Pump at village Nai Sarli, Tehsil Sadar, District Bilaspur. One Sh. Suraj Kumar alias Lucky, aged 17 years, lost his life in this accident. Claim petition was preferred by his mother seeking compensation of Rs. 40,00,000/-. 2(ii) Learned Motor Accident Claims Tribunal, Bilaspur vide impugned award dated 17.11.2017 held that Sh. Suraj Kumar alias Lucky died due to rash and negligent driving of truck bearing No. HP-11-5448, owned by the present appellant and driven by respondent No.2, Sh. Ashwani Kumar. This finding has not been challenged and has attained finality. 2(iii) Insurance Company in its reply to the claim petition took up a defence that the driver of the offending vehicle did not possess a valid and effective driving licence, therefore, insurer cannot be fastened with the liability to pay any compensation. Learned Motor Accident Claims Tribunal, Bilaspur examined this issue and returned the finding that driving licence has not been proved on record and, therefore, it need not be disproved by the Insurance Company. Accordingly, the finding was given against the appellant/owner of the vehicle. 2(iv) While determining compensation, learned Tribunal considered the notional income of the deceased, a minor aged 17 years, at Rs. 7000/- per month; After deducting 50% of this income towards assumed expenditure by the deceased on himself, the dependency was considered at Rs. 3500/- per month; Applying the judgment of Hon'ble Apex Court in Pranay Sethis case, (2007) ACJ 2700, 40% of the dependency towards future prospective income of deceased was added; Additionally, Rs. 80,000/- as compensation under conventional heads was awarded. In all, compensation amount of Rs. 11,38,400/- was awarded along with interest @ 7.50% per annum from the date of filing of petition till the date of deposit of amount. The liability to pay the amount was fastened upon respondent No.3, Insurance Company, which was held entitled to recover the same from the owner and driver in accordance with law. 3. 11,38,400/- was awarded along with interest @ 7.50% per annum from the date of filing of petition till the date of deposit of amount. The liability to pay the amount was fastened upon respondent No.3, Insurance Company, which was held entitled to recover the same from the owner and driver in accordance with law. 3. Since, Insurance Company was held entitled to recover the compensation amount from the owner and driver on account of the finding given by the learned Motor Accident Claims Tribunal, Bilaspur, on issue No.9 framed in respect of respondent No.2/driver not possessing a valid and effective driving licence, therefore, the owner is in appeal against the impugned award dated 17.11.2017, passed by learned Motor Accident Claims Tribunal, Bilaspur. I have heard Mr. Manoj Thakur, learned counsel for the appellant, Mr. T.S. Chauhan, Mr. Virender Thakur and Mr. Jagdish Thakur, learned counsel for the respondents and with their assistance gone through the record. 4. The main points to be examined in this appeal are:- (i) Whether respondent No.2, possessed a valid and effective driving licence to drive the vehicle in question? (ii) Even if, respondent No.2 did not possess a valid and effective driving licence for driving the vehicle in question, can the appellant/owner of the vehicle be held liable to discharge the compensation liability towards the claimants? 5. (I) Point No.1:- Issue No.9, framed by the Learned Motor Accident Claims Tribunal, Bilaspur was as follows:- "Whether the offending vehicles were being driven by unauthorized persons, who had no valid and effective driving licence to drive the offending vehicle as alleged. If so, its effect?.....OPRs-3 &6." The onus to prove the above issue was on the insurer. 5(ii) Summary of the evidence led by the parties in this regard may be noticed hereunder:- On behalf of Insurer, Sh. Amandeep Sharma, RW4, produced verification report (RW-4/C-1) of driving licence in question. He stated that:- the investigation regarding respondent No.2's driving licence was carried out by the Insurance Company through its investigator Sh. Bapan Nag, who in turn, received investigation report from Motor Vehicles Department, Office of the District Transport Officer, Tuensand, Nagaland, Government of India; In the investigation report, it was informed that there was no record with Motor Vehicle Department, Office of the District Transport Officer, Tuensand, Nagaland, Government of Nagaland, in respect of the driving licence in question in the name of respondent No.2. Learned counsel for respondent No.3, has contended that the driving licence Mark R-1, was even otherwise issued contrary to provisions of the Motor Vehicles Act. 5(iii) Learned counsel for the appellant contended that the investigation report Ext. RW-4/C-1, cannot be considered in evidence; as:- (i) The author of the report, Sh. Bapan Nag had not himself stepped into the witness box and; (ii) this was a mere photocopy of the original report. 5(iii)(a) Sh. Bapan Nag is not the author of the verification report. The verification report was supplied to him by the Motor Vehicle Department, Office of the District Transport Officer, Tuensand, Nagaland, Government of Nagaland, under Right to Information Act. 5(iii)(b) It is seen from the record that the investigation report (Ext. RW-4/C-1), initially brought on record was a photocopy. However, later on, a CMP No.396/06 of 2017, was moved by the Insurer under Order 8 Rule 1A (3) CPC to bring on record and tender in evidence the original verification report of the driving licence of respondent No.2, issued by the Motor Vehicle Department, Office of the District Transport Officer, Tuensand, Nagaland, Government of Nagaland. This application was allowed by learned Motor Accident Claims Tribunal vide order dated 31.08.2017, where-after original report was taken on record of the case. In Munshi Ram vs. Balkar Singh and Ors., FAO No. 598 of 2014 (O & M) and FAO Nos. 2705, 2838 of 2013 (O & M), decided on 18.02.2016, Hon'ble High Court of Punjab & haryana, observed as under: "..........At the Appellate Court, the owner has filed an application under Order 41 Rule 27 CPC that has elicited through RTI a response to say the licence number had been wrongly given as 18690/Ag/2003 when it was actually 16690/Ag/2003 and that it had been issued in the name of Balkar Singh. A response through RTI is of a public officer and it is a public document and would require no further corroboration in the manner contemplated under Section 77 of the Evidence Act. The document must be taken to be true of what its recitals state..." The RTI Information was relied upon by a Coordinate Bench of this Court in a decision rendered on 04.07.2012 in FAO No. 210 of 2011 titled as ICICI Lombard General Insurance Co. Ltd. vs. Smt. Bhima Devi and Others. The document must be taken to be true of what its recitals state..." The RTI Information was relied upon by a Coordinate Bench of this Court in a decision rendered on 04.07.2012 in FAO No. 210 of 2011 titled as ICICI Lombard General Insurance Co. Ltd. vs. Smt. Bhima Devi and Others. In view of the above, there is no escape from conclusion that the driving licence of respondent No.2 was actually fake. Point is answered accordingly. 6. Point No.2:- Having concurred with the findings of the learned Tribunal below that driving licence possessed by respondent No.2 was fake, the next question that arises is, whether the owner/ appellant is to be held liable for the compensation amount payable to the claimant? 6(i)(a) In titled as United India Insurance Ltd. Company vs. Lehru, (2003) 3 SCC 338 it was observed:- that the owner at the time of hiring a driver has to check as to whether the driver possesses a driving licence; if the driver produces a driving licence which, on the face of it, appears to be genuine then the owner is not expected to find out whether the licence has actually been issued by the competent authority or not; if the owner finds that driver is competent enough then he will hire the driver; therefore, it was observed that where the owner has satisfied himself that driver has a licence and is driving competently then there would be no breach of Section 149 (2) (a) (ii) of Motor Vehicles Act; the Insurance Company, then will not be absolved of its liability, even if the driving licence ultimately turns out to be fake, unless and until, it is proved that owner/insured was aware of the fact that licence was fake and despite that such person was permitted to drive the vehicle. 6(i)(b) In National Insurance Company vs. Swaran Singh, (2004) 3 SCC 297 , after considering the previous judgments on the issue, the Hon'ble Apex Court held that defence of licence held by the person driving the vehicle was fake, is available to Insurance Company, but insurer has to establish willful breach on part of insured, which will have to be determined in each case. 6(i)(c) The question was again considered by the Hon'ble Apex Court in titled as Pepsu Road Transport Corporation vs. National Insurance Company, (2013) 10 SCC 217 wherein, after noticing Lehru's case, Swaran Singh's case and Laxmi Dutt's case, it was observed as under:- "10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh's case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation." 6(i)(d) Above judgments were considered by the Hon'ble Apex Court in titled as Ram Chandra Singh vs. Rajaram and others, (2018) 8 SCC 799 . This was also a case, wherein the MACT and the High Court, had concurrently burdened the owner with liability to pay compensation amount on account of driving licence of driver having been found to be fake. The owner had practically conceded that driving licence was fake and had failed to produce any evidence to prove otherwise. The Insurance Company had taken an objection that owner of the vehicle was required to produce the driving licence so that it could be verified from the concerned licencing authority. It will be beneficial to notice the contentions raised by the parties therein:- insurer in its reply to the claim petition had taken a plea that driving licence of the driver was not valid and in the alternative, it was asserted that owner of the vehicle should himself produce the driving licence so that it could be verified from the licencing authority; Insurer had also placed on record an investigation report/ verification report and a photocopy of the driving licence to establish the fact that the driving licence relied upon by the owner and driver was fake and not valid; whereas, owner had stated that he had seen the photocopy of the driving licence and had satisfied himself about driver's driving skills before employing him as driver. Learned Tribunal in Ram Chandra's case (supra) made no attempt to analysis the pleadings and evidence on record. On behalf of the owner therein, reliance was placed upon Pepsu RTC's case. The High Court held Pepsu RTC's judgment as not applicable to the facts of the case. In this background, Hon'ble Apex Court held as under:- "10. The decision in PEPSU Road Transport Corporation (supra) was relied upon by the appellant before the High Court which, however, distinguished the same by observing that it was on the facts of that case, where the Court opined that there was no evidence to prove that the driving licence produced by the authorities was fake. That approach, in our opinion, is manifestly wrong. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru, and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh. Paras. Whereas, even in that case, the Court was called upon to deal with the similar question as is involved in this appeal. In that case, the Court first adverted to the decision in United India Insurance Co. Ltd. Vs. Lehru, and then to the three-Judge Bench decision in National Insurance Co. Ltd. Vs. Swaran Singh. Paras. 99-101 of Swaran Singh have been extracted, which read thus: (SCC p. 339) "99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case. 101. The submission of Mr Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of an insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver." (Pepsu RTC case, SCC pp. 222-23, para 8) The Court then went on to advert to a two-Judge Bench decision of this Court in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, before dealing with the facts of the case before it. 11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. 11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer." 6(ii) Summary of evidence on Point No.2:- 6(ii)(a) Applying the above law to the facts of instant case, it may be noticed that the appellant/owner of the vehicle stepped into the witness box as RW-1 and stated that; he had employed respondent No.2 as driver on truck bearing No. HP-11-5448; he had checked the driving licence of respondent No.2 while employing him; he had returned the original driving licence to respondent No.2 after retaining photocopy of the same which, he brought on record of the claim petition as Mark R-1; he expressed his ignorance as to whether respondent No.2 had produced his driving licence before the police or not; he also brought on record R-C (Ext. RW-1/A), Fitness Certificate (Ext. RW-1/B), Receipt of Token Tax (RW-1/C), Permit (Ext. RW1/D), National Permit (Ext. RW-1/E) and Insurance Policy (RW1/F). During his cross-examination, the appellant stated that:- he was not aware as to where the original driving licence of respondent No.2 was; respondent No.2 had been working with the appellant for around 25 days prior to the accident; he had checked the driving licence of respondent No.2 to ensure that he could drive heavy vehicles; driving licence of respondent No.2 was from Nagaland. He denied the suggestions that the photocopy of driving licence produced by him was forged and for that reason, he had not produced the original driving licence. 6(ii)(b) RW-3 ASI Rajender Kumar stated that FIR No. 273/2015 (Ext. PW-1/A) was registered regarding the accident on 30.10.2015, on the basis of which, case was registered against respondent No.2 under Sections 279, 337, 304-A of Indian Penal Code read with Sections 181 & 187 of Motor Vehicles Act; During investigation, respondent No.2 did not produce his driving licence. 6(ii)(b) RW-3 ASI Rajender Kumar stated that FIR No. 273/2015 (Ext. PW-1/A) was registered regarding the accident on 30.10.2015, on the basis of which, case was registered against respondent No.2 under Sections 279, 337, 304-A of Indian Penal Code read with Sections 181 & 187 of Motor Vehicles Act; During investigation, respondent No.2 did not produce his driving licence. 6(ii)(c) In the instant case, decision in Pepsu RTC's case (supra) was pressed into service by the appellant before the learned Tribunal, however, learned Tribunal held the same to be not applicable on the ground that copy of driving licence had not been proved. The facts of the instant case are more or less similar to the facts of Ram Chandara's case (supra). After holding that driving licence was fake, learned Tribunal could not have refused to consider judgment of Hon'ble Apex Court in Pepsu RTC's case merely on the ground that copy of driving licence Mark R-1, was not proved on record since original driving licence was not there. Respondent No.2, the driver of the vehicle was lodged in Bilaspur jail when he was summoned in the case by the Ld. MACT. Power of Attorney was filed on his behalf when he was produced pursuant to a production warrant. Though, written statement was filed on his behalf on 30.06.2016, but neither any evidence was led by him nor he stepped into the witness box and was proceeded ex parte on 08.06.2017. Nonetheless, the copy of driving licence produced by the appellant-owner of the vehicle (Mark R-1), the pleadings and evidence on record were required to be gone into by the learned Motor Accident Claims Tribunal to determine as to whether the owner was aware of respondent No.2's driving licence being fake or not. It has already been observed in the instant appeal that the driving licence in question was fake. However, merely, by holding that driving licence of respondent No.2 was fake, it will not be lawful to fasten the liability to pay the compensation amount on the appellant. This finding alone, will not absolve the insurer unless and until a finding comes on Point No.2, therefore, it would be just and appropriate to remand the matter to learned Motor Accident Claims Tribunal for fresh determination of liability to satisfy the compensation amount. This finding alone, will not absolve the insurer unless and until a finding comes on Point No.2, therefore, it would be just and appropriate to remand the matter to learned Motor Accident Claims Tribunal for fresh determination of liability to satisfy the compensation amount. In view of relegation of parties to learned Motor Accident Claims Tribunal, it is not necessary at this stage to go into question of justifiability of quantum of compensation awarded by learned Motor Accident Claims Tribunal below. It will be open to parties including the Insurance Company to agitate the award on all available grounds in case they feel aggrieved, after learned Motor Accident Claims Tribunal re-determines the liability to pay the compensation. 7. Accordingly, this appeal is allowed. The impugned award is set aside to the extent it fastens the liability upon the appellant. Matter is remanded to the learned Motor Accident Claims Tribunal, Bilaspur, H.P. to decide the case afresh, in the light of above discussions and observations for determining the liability to pay the compensation amount. The parties shall be free to raise all contentions available to them in accordance with law before the learned Tribunal. The observations made hereinabove are only for the purpose of adjudication of the controversy involved in the present appeal and will have no bearing whatsoever on the merits of the case. Parties through their respective counsels are directed to appear before the learned Motor Accident Claims Tribunal, Bilaspur, H.P on 31.10.2019. Record be returned forthwith. The appeal is disposed of along with pending application(s), if any.