In the High Court of Punjab & Haryana High Court at Chandigarh F.A.O. No. 2426 to 2438 of 2009 (O&M) Date of decision: December 17, 2009 Oriental Insurance Company Limited ... Appellant vs. Hukam Chand and others ... Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashwani Talwar, Advocate for the appellant. Mr. B.R. Sharma, Advocate for the respondent-claimants. Mr. Rahul Sharma, Advocate for the respondent-Sanjiv Garg A.N. Jindal, J This judgment of mine shall dispose of bunch of 13 cases bearing appeal Nos.2426 to 2438 of 2009, preferred against the award dated 29.11.2008 passed by the Motor Accident Claims Tribunal, Jhajjar (herein referred as 'the Tribunal') awarding compensation as under :- Case no. & title Compensation MACT Case No.93 of 2005, Hukam Chand and others vs. Karan Singh and others Rs.3,17,000/- MACT Case No.94 of 2005, Laxmi Narain and others vs. Karan Singh and others Rs.3,70,000/- MACT Case No.95 of 2005, Bijender Kumar and another vs. Karan Singh and others Rs.2,00,000/- MACT Case No.96 of 2005, Partap Singh and others vs. Karan Singh and others Rs.4,13,000/- MACT Case No.97 of 2005, Satish Kumar and others vs. Karan Singh and others Rs.3,94,000/- MACT Case No.98 of 2005, Dharam Singh and others vs. Karan Singh and others Rs.3,22,000/- MACT Case No.99 of 2005, Mamta vs. Karan Singh and others Rs.33,000/- MACT Case No.100 of 2005, Jai Pal and others vs. Karan Singh and others Rs.1,97,000/- MACT Case No.101 of 2005, Jaipal and others vs. Karan Singh and others Rs.2,02,000/- MACT Case No.102 of 2005, Charan Singh and others vs. Karan Singh and others Rs.4,18,000/- MACT Case No.103 of 2005, Savita vs. Karan Singh and others Rs.28,000/- F.A.O. No. 2426 to 2438 of 2009 -2- Case no. & title Compensation MACT Case No.104 of 2005, Laxmi and another vs. Karan Singh and others Rs.3,65,000/- MACT Case No.105 of 2005, Sushil vs. Karan Singh and others Rs.23,000/- The crucial question involved in these appeals preferred by the appellant- Oriental Insurance Company Limited (herein referred as 'the appellant') is “whether the driving licence which was continuously being renewed by the competent authority for seven times, was sufficient for the owner to make believe that it was valid?” The common facts as enumerated from all the 13 petitions are that on 31.7.2005 Munni Lal, Parmeshwari, Sarjo, Mukul Kumar, Smt. Kela, Smt. Sushil, Kammo, Sarjo, Kamla Devi, Lal Chand, Amit, Mamta along with some other persons while travelling in Tata-407 bearing registration No.HR-63-8401, were going to village Gandhla, District Rewari to pay obeisance on the death of their relative. AT about 11.30 a.m. When they were ahead of village Machhroli towards Rewari, the respondent Karan Singh (now respondent No.5) while driving offending vehicle bearing registration No. HR-58-4088 loaded heavily and covered with tirpaline came from the side of Rewari and struck against the vehicle of the deceased, as a result of which the aforesaid Tata-407 bearing registration No.HR-63-8401 turned turtle and all the occupants suffered injuries. Later on Smt. Kamla, Smt. Kala, Mani Ram, Rameshwar, Sushila Devi, Mukul, Kamo Devi, Sarjo and Saroj succumbed to their injuries, however, Savita, Mamta and Sushil injured were cured of the injuries. The accident was reported to the police, whereupon, FIR No.292 dated 31.7.2005, under Sections 279, 337, 304-A IPC was registered at Police Station, Jhajjar. Consequently, 13 claim petitions were preferred which were contested by the respondents. The respondents No.1 and 2 in their written statement denied all the allegations and further submitted that the accident took place due to rash and negligent driving on the part of the driver of Tata 407 bearing registration No.HR-63-8401. The respondent Karan Singh was driving the vehicle at moderate speed and in the right direction, whereas, driver of Tata 407 was driving the vehicle in a rash and zig zag manner. They also stated that a false case was registered against Karan Singh. The appellant-respondent No.3 Insurance Company while F.A.O. No. 2426 to 2438 of 2009 -3- denying the allegations took the preliminary objection, inter alia, that the truck bearing registration No.HR-58-4088 was being driven without any route permit and respondent No.1 Karan Singh was not holding a valid driving licence at the time of accident. As such, since the vehicle was being driven in violation of the terms of the policy of insurance, therefore, they are not liable. It was further reiterated that the accident took place for the fault on the part of Karan Singh driver. Vide order dated 13.3.2006 all the 13 claim petitions were consolidated and evidence was ordered to be recorded in MACT Case No.93 dated 8.9.2005/6.10.2005 titled as Hukam Chand etc. vs. Karan Singh etc. From the pleadings of the parties, the following issues were framed :- 1. Whether Smt. Kamo, Mukul Kumar, Smt. Saroj, Kamla Kumari, Sushila, Suresh Kumari, Saroj, Parmeshwari, Kela, Muni Lal, all since deceased died and Smt. Sushil, Mamta and Karam Singh (injured) have sustained multiple and grievous injuries in a road side accident allegedly caused due to rash and negligent driving of the truck bearing registration No.HR-58-4088 by its driver respondent No.1 Karan Singh or due to negligence of driver of Tata 407 bearing registration No.HR-63-8401 or due to contributory negligence of both the vehicles?OPP 2. If issue No.1 is proved, in affirmative then to what amount of compensation, the claimants of all the claim petitions are entitled to and from whom and in what ratio?OPP 3. Whether respondent No.1 was not holding a valid and effective driving licence at the time of alleged accident and offending truck was being driven in contravention to the terms and conditions of the insurance policy?OPR-3 4. Whether petitions are bad for non joinder of necessary parties?OPR 5. Relief. F.A.O. No. 2426 to 2438 of 2009 -4- Both the parties led evidence and ultimately all the claim petitions were allowed in the aforesaid terms. The onus to prove issue No.1 was upon the claimants. The onus was duly discharged by the claimants while leading sufficient evidence on the record. Lal Chand (PW1) and Mahabir (PW14) have consistently stated that the accident took place on account of the fault of the truck driver who while driving it rashly and negligently struck against the Tata 407, as a result of which some ladies suffered injuries and others died. He has given complete description of the ladies who died and those who suffered injuries. It is also not the case of contributory negligence. The next argument as advanced by the learned counsel for the appellant-Insurance Company is that the driving licence as held by the driver was fake as proved by the witnesses Hans Raj (RW1), Sudesh Bala (RW2) and Rakesh Parmar (RW3), therefore, the renewal of the fake driving licence, if any, does not validate it, as such, the company could not be held liable. To the contrary, learned counsel for the respondents No.1 and 2 has urged that clarification report cannot be read in evidence for the reason that name of the author has not been disclosed nor he appeared in the witness box to prove the said report. It was further urged that in order to escape from the liability, it was required for the Insurance Company to prove that the owner knowingly and intentionally handed over the vehicle to the driver who was not competent to drive the same and had no such valid driving licence. Without proving the knowledge and intention of the owner, breach of the terms and conditions of the policy cannot be attributed to the insured. In this regard respondents No.1 and 2 have placed reliance on the judgment delivered in case United India Insurance Company Limited vs. Lehru and others 2003 (3) RCR (Civil) 278; National Insurance Company vs. Surjeet Kaur 2001 ACJ 526; United India Insurance Company Limited vs. Surjit Singh Sodhi 2001 (2) RCR (Civil) 239; Poonam Devi vs. Divisional Manager 2004 (2) RCR (Civil) 236 and Master Pawan Kumar vs. Mohd. Kadir and others 2006 (4) RCR (Civil) 38. Having heard the rival contentions and having perused the records, it transpires that the driving licence (Ex.R2) was issued by the F.A.O. No. 2426 to 2438 of 2009 -5- Licencing Authority, Alwar. Sanjeev Garg (RW4) while appearing in the witness box has stated that being the owner of the vehicle bearing registration No.HR-58-4088 had taken all the necessary precautions before employing the respondent Karan Singh as his driver. The presumption of law is that no owner would hand over his valuable article without knowing capability and competency of the driver as he was to gain nothing from him by doing so, but could suffer a loss worth lacs of rupees if vehicle is involved in the accident. It has also been stated that the said driving licence was got renewed by the driver seven times, thus, he must have displayed his worth for driving the vehicle before getting the renewal of the said licence. Be that it may, the licence was fake, it was not proved according to law, any way, since the said licence was renewed several times, the presumption would be that it was valid. While sitting in the arm chair of the owner, a prudent man cannot be expected to think that the driver whose licence has been renewed so many times was holding a fake licence. The insurance company has failed to discharge the onus while leading any such evidence that the respondent did not make any inquiry before employing Karan Singh as driver on the offending vehicle. While examining the rights and liability of the driver and insurer, it was observed by the Apex Court in case United India Insurance Company Limited vs. Lehru and others 2003 (3) RCR (Civil) 278 : (1) 2003 ACJ 611 (SC) as under :- “17. When an owner is hiring a driver he will therefore, have to check whether the driver has a driving licnece. 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. We find it 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 Section 149 (2) (a) F.A.O. No. 2426 to 2438 of 2009 -6- (ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they 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 case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured.....” In the instant case, the driving licence which the driver was holding have been renewed several times, therefore, the owner could not be expected to doubt over the said licence and his competency could not be challenged. Even otherwise, he handed over the vehicle on the basis of the said licence, therefore, the liability of the insurance company cannot be ignored. It was also observed by this Court in case United India Insurance Company Limited vs. Surjit Singh Sodhi 2001 (2) RCR (Civil) 239 that when the owner of the vehicle engages a driver, he is required to see whether the driver has valid driving licence which should be valid on the date of engagement and it is issued by the Licencing Authority apparently. The owner may also take the driving test to see the sense of prompt attention, character and good conduct etc. After being satisfied a valuable vehicle is handed over to the driver. It was also observed that it was not expected from the owner of the vehicle to go to the offices of the Licencing Authorities spread all over India in order to check that the driving licence has been validly issued or not. Thus, the onus run heavily on the insurance company to show that the driver had no valid driving licence or that the owner of the vehicle committed a willful breach when he engaged a person with no proper driving licence and that the act of the owner was so reckless that he did not adopt a reasonable care while engaging the driver. If the Insurance Company is in a position to show that it was in the knowledge of the owner that the driver had been disqualified from driving a vehicle by any competent authority, certainly the company may have a case of “breach” or willful act committed by the person fully knowing the consequences of the case. Besides, it was also observed in case National Insurance Company Limited vs. Swaran Singh and others 2003 (3) L.J.R. 826 that F.A.O. No. 2426 to 2438 of 2009 -7- mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties and that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence or failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who has not been disqualified to drive at the relevant time. It was also observed that the question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver is a fake one or otherwise does not fulfill the requirement of law, will have to be determined in each case. Having scrutinized the present case, it may be observed that the owner who handed over the vehicle on seeing the driving licence could not even think or anticipate the same to be fake as at the very face of it, the said driving licence as issued by the Licencing Authority, Alwar was renewed several times and thus, no knowledge about its invalidity could be attributed to him as such he cannot be held liable to pay the compensation and the company is bound to indemnify the claimants. As a result of the aforesaid discussions, it would not be unsafe to hold that the insurance company cannot escape from the liability to reimburse the amount of compensation which is payable to the claimants. As such, the findings returned by the Tribunal on issue No.3 stand affirmed. No other argument has been advanced. Consequently, finding no merit in all the appeals, the same are hereby dismissed. A photo copy of this order be placed on the file of each connected case. December 17, 2009 (A.N. Jindal) deepak Judge