IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 474 of 2007 Date of Decision: 7.9.2011 United India Insurance Company Limited … Appellant. Versus. Sarojit Naik and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant: Mr. Ashwani Kumar Sharma, Advocate. For the respondents 1 to 4: Mr. G.R.Palsra, Advocate. Deepak Gupta, J. (Oral). 1. This appeal by the Insurance Company is directed against the award of the Motor Accidents Claims Tribunal, Mandi dated 25.8.2007 whereby an amount of Rs.5,24,000/- alongwith interest has been awarded in favour of the claimants and the Insurance Company has been held liable to satisfy the award. 2. The main contentions raised by Shri Ashwani Sharma, learned counsel for the Insurance Company are that the deceased did not die as a result of a motor vehicle accident and therefore, the claim petition was itself not maintainable and secondly that the driver of the vehicle did not have a valid driving license and 2 hence the Insurance Company could not have been held liable. 3. As far as the first contention is concerned the case of the petitioner is that the deceased was employed as a crusher operator and Kewal Ram, the driver of vehicle No.HP-49-A-9869 which was owned by M/s S.S.Satya Narayana and Company, was reversing the tipper to load grit (bazaree) and crushed the deceased. The stand of the driver was that a false case has been lodged against him. PW-1 has proved on record the F.I.R. Ext.PW-1/A and as per the F.I.R. when the truck was being reversed to load grit in it, the deceased who was standing on the mound of grit fell down and came under the truck. Even if this F.I.R. is not taken into consideration, in my view the statement of PW-4 Yadvinder Sharma is sufficient to hold that the deceased died as a result of a motor vehicle accident. According to this witness on 15.11.2003 at about 3.00 p.m Kewal Ram reversed the truck to load grit on to the tipper. The deceased was a crusher operator came and stood on the mound of the grit and nobody saw him coming and when the grit was being loaded in the back side of the tipper suddenly the mound of grit flattered, the deceased fell down and came under the truck and died. This witness has virtually not been cross- 3 examined on this aspect of the matter and the only suggestion made to him was that he was making a false statement in Court. 4. The statement of RW-1 Kewal Ram driver is that he had gone to lunch and the tipper was standing and when he came back he came to know that the deceased had died. His version cannot be believed because this was neither suggested to PW-1 nor to PW- 4 and this version was not set up in the written statement filed by the driver. Even assuming for the sake of argument that the tipper did not directly hit the deceased even then it is the duty of the person operating the tipper to ensure that when he was loading the material on to the tipper he does so in such a manner that no person is injured. A duty to take care is cast upon the driver and the conductor of such vehicle and if they fail to perform such duty a presumption of negligence can be drawn. 5. As far as the issue of driving license is concerned the owner has stepped into the witness box and stated that he had checked the license. No doubt from the statement of RW-4 it appears that the license originally was fake and it is settled law that mere renewal of fake license will not clothe it with genuineness. However, when the Registering and Licensing Authorities are 4 renewing a fake driving license how can the owner ever know that the license is a fake one. It is a settled law that to avoid its liability the Insurance Company must prove breach of the policy on behalf of the insured. If the insured had taken steps to verify the license merely because of the license turned out to be fake it does not mean that he has breached the policy. Therefore, this contention of the Insurance Company is also rejected. 6. As far as quantum is concerned, it has come on record that the deceased was being paid Rs.5911/- per month. The dependency has been fixed only Rs. 3500/- per month, which is in fact on the lower side. The multiplier of 12 used is also on the lower side. Therefore, the award is conservative and not at all excessive. Therefore, I find no merit in the appeal which is accordingly dismissed. No costs. 7th September, 2011 ( Deepak Gupta ) ™ Judge.