FAO No.2827 of 2006 (O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Cross Objection Petition No.52-CII of 2007 and FAO NO.2827 of 2006(O&M) M/s Delhi Punjab Goods Carrier ... Appellant VERSUS Sunanda Kataria and others ... Respondents Decided on : July 10, 2009 CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Sandeep Khunger, Advocate for the Appellant. Mr.Ashutosh Gupta, Advocate for Mr.Puneet Jindal, Advoate for respondents No.1 to 4. Mr.Atul Jain, Advocate for respondent No.5. Mr.Ashwani Talwar, Advocate for respondent No.6. A.N.JINDAL, J.- CM No.12497-CII and 12499-CII of 2006 are allowed. The delay condoned. This judgment shall dispose of FAO No.2827 of 2006 as well as Cross Objection Petition No.52-CII of 2007 filed therein by respondents No.1 to 4. M/s Delhi Punjab Goods Carrier, Patel Chowk, Jalandhar – respondent – appellant (herein referred as `the appellant'), owner of the offending vehicle (truck) bearing Reg.No.PB-08J-4272 has assailed the award dated 9.2.2005, whereby, the claim petition of the claimants - FAO No.2827 of 2006 (O&M) [ 2 ] respondents No.1 to 4 (herein referred as `respondents No.1 to 4') was accepted and they were awarded compensation to the tune of Rs.2,64,000/- along with interest at the rate of 6% per annum, in favour of Sunanda Kataria - respondent No.1 and against the appellants and respondent No.5. It was further ordered that the amount of compensation shall be paid by the Insurance Company – respondent No.6, but it would have right to recover the same from the appellant and respondent No.5 (owner and driver of the offending vehicle). The brief facts leading to the present controversy are that a claim petition was filed by respondent No.1 to 4 with the averments that on 19.2.2001, Vijay Kataria, aged about 52 years lost his life in a vehicular accident, which occurred on account of rash and negligent driving of respondent No.5, who was on wheels of truck bearing Reg.No.PB-08J- 4272. The Motor Accident Claims Tribunal held the negligence of respondent No.5. However, while holding that respondent No.5 was not holding a valid driving licence, it directed the Insurance Company – respondent No.6 to pay the compensation. However, on turn, it could recover the same from the appellant (owner) and respondent No.5 (driver). Hence, this appeal by the owner – appellant. The crucial question, requiring determination in this appeal is, whether the Insurance Company could be given liberty to recover the amount from the driver and owner. Both the parties have placed reliance upon the decision of the Apex Court in case United India Insurance Company Limited vs. Lehru and others, AIR 2003 SC 1292. FAO No.2827 of 2006 (O&M) [ 3 ] I have examined the aforesaid judgment of the Apex Court and the relevant extract of the observations of their Lordships reads as under:- “When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. It is rather strange that Insurance Companies 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 S.149(2)(a)(ii). The Insurance Company would not then be absolved of its liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless then prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured.” The golden thread running through the aforesaid judgment is FAO No.2827 of 2006 (O&M) [ 4 ] that the Insurance Company would be absolved of its liability if it is proved on record the the licence was fake. However, it would remain liable, unless it is proved that the owner/insured was aware or had notice that the licence was fake and still allowed the person to drive the vehicle. No doubt, the onus to prove the validity of the driving licence is upon the insurer and once the insurer proves the licence to be fake, then it is the owner to prove by way of leading evidence that he was not aware and had no knowledge or reason to believe if the licence was fake. He, in order to satisfy himself regarding the validity of the licence, took a step further and tested his competency to drive the vehicle. In the case in hand, the appellant has not led any evidence on record that he ever made any enquiry with regard to the validity of the licence. He also did not make any statement that he never knew that respondent No.5 was holding a valid driving licence and that he took his test regarding his competency to drive the vehicle. As such, the onus which originally shifted to the owner could not be rebutted. Resultantly, it would not be unsafe to hold that Harjit Singh, representing the appellant firm certainly had violated the terms and conditions of the insurance policy by employing respondent No.5 on the driver seat of the vehicle. Consequently, it would be appropriate to hold that the findings returned by the Trial Court on issue No.3 are correct and do not warrant any interference. Now, coming to the cross-objection petition filed by the claimants, it is observed that the appropriate multiplier of 12 has been applied after examining the age, dependancy, exigencies and imponderables FAO No.2827 of 2006 (O&M) [ 5 ] of life. The compensation of Rs.2,64,000/- is quite fair and reasonable. Thus, there are no grounds for enhancement. The appeal as also the cross-objection petition are dismissed. ( A.N.JINDAL ) JUDGE July 10, 2009 `gian'