1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil Misc. Appeal No.1688/1999 {The New India Insurance Company Limited Versus Devi Ram & Others} Date of Judgment :: 28th October, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Tripurari Sharma, counsel for the appellant Mr. Gajendra Sharma, counsel for the respondents no. 1 to 6 Mr. Kapil Sharma, counsel for the respondents no. 7 & 8 REPORTABLE- BY THE COURT: Challenge in this appeal is to the judgment and award dated 24th August, 1999 rendered by the Motor Accident Claims Tribunal, Karauli, whereby the learned Tribunal decreed an amount of Rs. 1,35,000/- in favour of the claimants-respondents and against the appellant. 2. Background facts in nut shell are thus: “That on 13th April, 1997, Balram was going from Ujjain to his village Karauli by Jeep No. RJ 25/C 0603 driven by one Happu driver. The jeep started from Ujjain at 2.30 PM. It is alleged that the driver drove the jeep 2 rashly and negligently at a fast speed, as a result of which Balram fell down from the jeep near Jagarpura and sustained injuries on his head and stomach. He was immediately taken to hospital of Kota, where he succumbed to injuries during treatment. The appellant-respondent denied the negligent driving of jeep driver and stated that the deceased Balram was sitting inside the jeep safe. Neither the jeep met with any accident nor it over- turned. The fact is that the deceased Balram was addicted to 'Opium' and 'Bhang' and under the intoxication of these drugs, he jumped from the jeep, resulting into his death. Thus, the Insurance Company was not liable for the act of Balram.” 3. Heard the learned counsel for the appellant as also the learned counsel for the respondents and perused the relevant material including the impugned award. 4. The appellant has preferred the instant appeal on the following grounds: i) That the driver of the Jeep did not drive it rashly and negligent. The said jeep did not meet with an accident on 13th April, 1997. It was the deceased Balram, who being addicted to drugs, himself jumped 3 from the running jeep and sustained injuries on his head and stomach, as a result of which he died. ii) That the owner of Jeep RJ 25/C- 0603 violated the terms and conditions of the insurance policy as he had engaged Happu Singh to be the driver of the Jeep, who was having a fake driving license. iii) Happu Singh is said to have obtained the said driving license from licensing authority Raipur. Contrary to it, NAW 2 Rajesh Kumar Bhargava, Assistant Grade-III, RTO office, Raipur, Madhya Pradesh, has categorically deposed that the license in question was not issued by their office on 15th March, 1991, the date, which is mentioned on the disputed driving license. The series of the driving license also did not belong to their office as their office had never issued driving licenses under that series. The learned Tribunal has ignored all these facts and arbitrarily observed the disputed license to be genuine one and thus erred in passing an award in favour of the claimants. The learned counsel for the appellant 4 has reiterated these arguments while making the submissions before the Court and contended that the Insurance Company cannot be held liable to pay the amount of compensation, if the terms and conditions are being violated by the owner of the vehicle. In the instant case, the owner of the Jeep employed Happu Singh to be the driver of the Jeep, who had fake driving license with him. Thus, the Insurance Company should be absolved of its liability. 5. The learned counsel for the respondents, in contra, has canvassed that NAW- 1 Mansoor Khan, who happened to be the owner of offending Jeep RJ-25-C-0603 appeared in the witness box and deposed that he had employed Happu Singh as driver on his jeep after enquiring into his driving license. The learned counsel for the respondents defended the observations made by the learned Tribunal and stated the finding arrived at in this regard to be just and reasonable. 6. Learned counsel has further contended that NAW-2 Rajesh Bhargava, who came from RTO office Raipur did not bring with him the relevant record, with regard to issuing license, being maintained in their office. The witness did not bring the register of the year 5 1994 also, which was very relevant to prove the driving license of the driver to be fake. The arguments advanced by the learned counsel for the appellant are devoid of any force and the appeal deserves to be dismissed. 7. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the driving license of Happu Singh is found to have been issued by the licensing authority, Raipur (Madhya Pradesh) on 7th March, 1991, which was valid upto 16th March, 1994. Thereafter this license was renewed on 16th March, 1994 and remained valid upto 15th March, 1997. The appellant examined NAW-2 Rajesh Kumar Bhargava, who happened to be Assistant Grade- III in RTO office, Raipur (Madhya Pradesh) on 24th July, 1999 when he appeared in the witness box before the Tribunal. His statements are not found to be relevant in the instant case as neither he brought the license issuing register pertaining to date 7th March, 1991 nor he brought the register relating to the entries made in the register on 16th March, 1994. At the cost of repetition, it is again stated that the said license (Ex. 8) was issued by the Licensing Authority on 7th March, 1991 and the 6 same was renewed on 16th March, 1994. Nothing has been said by the witness with regard to these two entries of 7th March, 1994 and 16th March, 1994. He has simply stated that this license was not issued by their office as the number printed on the license did not belong to their office. It is true that driving license bears the Sr. No. 11/17650/91 and the witness Mr. Bhargava has deposed that series of 17650 never commenced in their office. He has further deposed that the driving license (Ex. 8) was never issued by their office. Though his statements cast doubt about the genuineness of the said driving license, but at the same time, it is not proved that this driving license was fake as whatever evidence has been led by the appellant – Insurance Company has been found to be insufficient to hold the said driving license to be fake. The Tribunal has committed no error in holding that the driving license of the driver Happu Singh was not found to be fake. 8. In the case of National Insurance Co. Ltd. Versus Geeta Bhatt & Others, reported in 2008 RAR, 157 (SC), the Hon'ble Apex Court has held that: “We would, therefore, assume that the license possessed by the 7 6th respondent, Gopal Singh was a fake one. Only because the same was fake, the same, having regard to the settled legal position, as noticed here-in-before, would not absolve the insurer to reimburse the owner of a vehicle in respect of the amount awarded in favour of a third party by the Tribunal in exercise of its jurisdiction under Section 166 of the Motor Vehicles Act, 1988. 9. From the perusal of the evidence and relevant documents on record, it is found that the owner of the jeep in question had no knowledge at the time of employing Happu Singh as driver on his vehicle that he was having a fake driving license. He is found to have conducted the preliminary enquiry from the driver himself and came to know that Happu Singh knew driving and he had a valid driving license with him. The insurance company can absolve from its liability only in such a situation where a willful breach of terms and conditions of the insurance policy is found to have been made by the owner of the vehicle. In the instant appeal, it is not found so. The learned Tribunal has critically examined the entire evidence and carefully analyzed the matter in the light of the pronouncement of the Hon'ble Supreme Court on this point. 10. In the case of National Insurance Company Limited Versus Swarn Singh and Others, 8 reported in ACJ, 2004 (Vol.-I), 1, it has been held that mere absence, fake or invalid driving license or disqualification of the driver for driving, are not themselves defences available to the Insurance Company. 11. The impugned judgment and award passed by the learned Tribunal is not found to have suffered from any infirmity. The finding arrived at by the learned Tribunal is just and proper and warrants no intervention. 12. For these reasons, the appeal filed by the appellant – the New India Assurance Company Limited fails and the same being bereft of merits, stands dismissed. 13. No order as to costs. (MAHESH BHAGWATI), J. DK/-