IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.22 of 2005 BRANCH MANAGER ,NATIONAL INSURANCE, CO. LTD., Rajendra Nagar, Nawada. --------------------- O.P. No. 3/Appellant. Versus 1. ANITA DEVI, W/o – late Shyam Sundar Singh 2. JANKI DEVI, W/o – late Chandrika Singh 3. PRASHANT KUMAR, S/o – Late Shyam Sundar Singh 4. SUNITA KUMARI, D/o – Late Shyam Sundar Singh (Respondent no.3 and 4 are monor son and daughter of Late Shyam Sundar Singh under the Guardianship of mother Anita Devi) All village – Dariyapur, P.O. Bansh Gopal, Amama, P.S. – Rajauli, District – Nawadah. --------------------- Claimants/Respondents. 5. Seva Sinha, Retd. Teacher, S/o – late Hari Nandan Singh, resident of village hatpar, Akbarpur, P.O. – Raghat, P.S. – Akbarpur, district – Nawadah. (Owner of the vehicle No. BR-27-4214) ---------------- O.P. No. 1/Respondent. 6. Md. Mahmud Alam, S/o – Md. Hasim, resident of village Nizam, P.S. – Akbarpur, District – Nawadah. Driver of the Vehicle BR-27-4214. ------------- O.P. No. 2/Respondent. ----------- 17. 08.07.2010 Heard learned counsels representing the parties in this appeal preferred against judgment dated 26th August, 2004 passed in M.A.C.T. Case No. 6/2003/56/2001 by learned 3rd Additional District Judge-cum-Motor Accident Claims Tribunal, Nawada, awarding sum of Rs. 1,97,000/- with interest @ 6% from the date of application till realization payable by the appellant i.e. insurer with a liberty to recover the amount from the owner of the said Commander Jeep in question if the driving license of the driver is found invalid. There is very limited question for determination in view of undisputed factual aspects. 2. The appeal is with consent of the learned - 2 - counsels is being disposed of at the admission stage itself. 3. Undisputedly in an accident, the deceased Shyam Sunder Singh, died on 22.06.2001, the vehicle in question was Commander Jeep bearing no. BR-27 / 4214, while the deceased after performing Puja was returning his home. There was Kodarma P.S. Case No. 225/2001 under Section 279, 304A of the Indian Penal Code and charge sheet etc. was submitted against the driver for rash and negligent driving. 4. In the application, age of the deceased has been stated to be 35 years and court below in para 10 of the judgment placing reliance upon post mortem examination report exhibit – 3 accepted the age of the deceased being 35 years and accordingly used the multiplier 16 with the estimated income, which is not in dispute now. 5. At the point of age, learned counsel for the appellant has only reservation that post mortem examination report indicates the age of deceased 45 years, whereas due to clerical error bit enhanced amount has been directed to be paid to the claimant. On going through the Lower Court Records especially exhibit – 3, the post mortem examination report. Learned counsel for the respondent claimant fairly conceded that it was nothing but a clerical error on the part of the court below. Age of the deceased in the post mortem examination report i.e. solitary documentary/medical evidence on this issue - 3 - is 45 years. 6. Learned counsel for the respondent tried to led emphasis that in oral evidence the witnesses have stated the age of the deceased 35 to 40 years, but, at the same time, he further conceded that in face of oral evidence and solitary documentary evidence on this point. Age of the deceased be considered as 45 years and accordingly multiplier may be 15 in place of 16, on that basis the amount payable to the claimants shall be reduced by 12,000/- instead of total amount of Rs. 1,97,000/- awarded to them shall be reduced to 1,85,000/-. Learned counsel for the appellant also concede to this calculation and accordingly the impugned judgment and award deserves to be modified. 7. The next and most relevant contention of learned counsel for the appellant is that the claim tribunal at one hand provides liberty of recovery to the appellants, of the amount so awarded and paid by the insurer to the claimant from the owner in case of finding the driving license of the driver of the ill-fated vehicle fake, on the other hand, has given finding that the license was valid one. If the license is valid, there shall be nothing for the appellant insurer to recover the awarded amount paid from the owner under law. Such liberty could only be given, if, there is a definite finding of the license being fake or the matter is left for determination subsequently. 8. It is undisputed that there is no document - 4 - tendered/accepted in evidence like driving license of the driver of ill-fated vehicle, but at the same time, one Xerox copy of the driving license is there on record, which was on the objection raised by insurer, the appellant, refused to be marked exhibit vide order dated 05.12.2003. The objection as appears from the application field by the insurer appellant was that, investigation regarding its genuineness was still pending. 9. During the course of argument, learned counsel for the appellant submitted that still he is not in a position to show about the result of the investigation which was initiated at the earliest stage, after being noticed by the court below. 10. It is undisputed position of law that if the vehicle involved in accident was being driven by a person having either no/fake license, the insurer cannot be held liable to make payment of the amount awarded to the claimants. However, in view of Section 149 of sub-clause 4 which reads as such” “(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of sub-section (2) shall, as respects such liabilities as are required to be covered by a - 5 - policy under clause (b) of sub-section (1) of section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person. 11. The insurer may be directed to make payment to 3rd party claimant with a right to recover the amount from the owner of the vehicle. 12. Learned counsel placing reliance upon the decision of the Apex Court in a case of National Insurance Co. Ltd. v. Parvathneni reported in 2010(1) PLJR 76(SC); submitted that in the event of insurer being held not liable to make any payment cannot be compelled to pay the award amount with a right to recover from the owner. 13. No doubt the Apex Court in the said case has on consideration the aspects that in some cases the recovery may take years or in some cases it could not be possible to recover, so whether the insurer can be compelled to make such payment with a liberty as directed by the Apex Court in different cases such as: National Insurance Co. Ltd. vs. Yellamma & Another, (2008)7 SCC 526, Samundra Devi vs. Narendra Kaur, (2008)9 SCC 100 (vide para 16), Oriental Insurance - 6 - Co. vs. Brij Mohan, (2007)7 SCC 56 9(vide para 13), New India Insurance Co. vs. Darshan Devi (2008)7 416 (vide para 21), etc.] and referred the matter before Hon’ble Chief Justice of India for constituting a larger Bench to decide the issue and undisputedly till today there is no other decision on this issue. 14. In the instant appeal the matter in issue is quite different. There is Xerox copy of one driving license of the driver on record which was though not accepted in evidence by the court below on the objection of insurer. The appellant who was investigating its genuineness but neither till decision by the court below nor even till today there is any document to show that the driving license filed and available on record is/was fake one. 15. In face of the above, there is nothing on record to show that driving license of the driver for the vehicle involved in the instant case was fake, so finding of the court below regarding same being valid may not be correct without initially taking the Xerox copy in evidence by marking exhibit at the same time the court below appears to be liberal enough in giving opportunity to the insurer appellant to recover the amount so awarded and paid to the claimant, from the owner, if at any point of time the insurer is armed with any document showing the license is fake one. 16. Thus, the court below appears not have committed any error while directing the insurer the appellant in making payment of the amount so awarded to the claimants, of - 7 - course, as noticed and discussed above, there was a clerical error as regard to application of multiplier, accordingly, with only modification as regard to quantum of award amount reducing the same from Rs. 1,97,000/- to 1,85,000/-. The appeal stands dismissed. The appellant is directed to make payment if not paid earlier with interest as awarded at the earliest. Simultaneously, statutory amount of Rs. 25,000/- paid shall be transmitted to the court below through a demand draft in the names of award holders towards payment of compensation. Rajeev/ (Akhilesh Chandra, J.)