IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.392/2003. Date of Decision:23rd September,2008 National Insurance Company. …Appellant. Versus: Sube Singh and others. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 .No. For the appellant: Mr.A.K.Sharma, Advocate. For Respondent-1. Mr.B.S.Kanwar, Advocate. For respondents Mr.R.R.Rahi, Advocate. No.2(a) to 2(d). Sanjay Karol, J (Oral). CMP.No. 504 of 2008 & Cross Objection No.348/2004. Mr.B.S.Kanwar, learned counsel appearing for respondent No.1, seeks liberty to withdraw the cross objection as also the application. Ordered accordingly. FAO.No.392/2003 The present appeal arises out of the impugned award dated 1st April, 2003 passed by Motor Accident Claims Tribunal (II), Shimla, H.P. in M.A.C No. 85-S/2 of 1997 titled as Sube Singh Vs. Mangat Ram Dogra and others. The present appeal has been filed by Insurance Company assailing the impugned award for the reason that 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the liability to pay the awarded compensation has been fastened on them. On 8th January, 1997 Sh. Sube Singh respondent No.1 herein was travelling in a bus bearing No.HP-07-2717. The vehicle owned by Sh. Mangat Ram Dogra-original respondent No.2 (hereinafter referred to as the ‘owner’) was being driven by Sh. Madhu Kant-respondent No.3 (hereinafter referred to as the `driver’). The vehicle met with an accident on 8th January, 1997 due to which the claimant sustained injuries. Accordingly, a petition under Section 166 of the Motor Vehicles Act was filed by the claimant claiming compensation of Rs.15,00,000/- Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner sustained personal injuries in a motor vehicle accident occurred due to rash and negligent driving on the part of respondent No.3. ?. OPP. 2. If issue No.1 is held in affirmative to what amount of compensation the petitioner entitled and from whom?. …OPP. 3. Whether respondent No.3 was not having valid driving license at the time of accident. As alleged, if so to what effect?. ..OPR-2. Relief. After giving opportunity to the parties to adduce evidence, the Tribunal considered the material on record and held that the claimant had sustained injuries in the accident which occurred due to rash and negligent driving on the part 3 of the driver. On issue No.2, after considering the fact that the claimant was 32 years of age and had suffered disability to the extent of 40% (permanent in nature), the compensation, based on the salary payable to the claimant from the Army, was determined to be Rs.4,60,000/-. The present appeal has been filed by the Insurance Company which is confined to issue No.3, therefore, the scope of the present appeal is narrow. The owner, driver or the claimant have not assailed the aforesaid findings. The findings of the Tribunal on issue No.1 and 2 are not disturbed and are upheld. After appreciating the evidence (oral and documentary), the Tribunal came to the conclusion that the Insurance Company could not prove that the license issued by the Licensing Authority was either fake or not endorsed in accordance with law. Therefore, the Insurance Company was held liable to indemnify the amount of compensation awarded in favour of the claimant. The appellant has also filed an application under Order 41 Rule 27 read with Section 151 C.P.C. seeking permission to lead additional evidence by examining licensing Clerk from the office of the Registering and Licensing Authority, Shimla (Urban) as also the licensing Clerk from the office of the Licensing Authority, Chandigarh. It is a matter on record that in response to the claim petition, the Insurance Company categorically pleaded 4 that the driver in question was not having any driving license at the time of the accident. However, subsequently the Insurance Company examined its witness Sh. Arun Ahluwalia (RW-4), Administrative Officer, Divisional Office, Shimla, who categorically deposed that the driver was not having a valid and effective driving license at the time of the accident, therefore, the terms of the policy stood violated and the insurer was not liable to indemnify the insured. He further deposed that the insurer had engaged the services of Sh.Rajvinder Sandhu, Advocate and Sh.Kapil Kumar Gupta to verify the authenticity of the driving license. His deposition stands corroborated by Sh. Kapil Kumar Gupta (RW-5), Investigator, appointed by the Insurance Company, according to whom he had made an inquiry and submitted his report (Ext.RW-5/A).He had also made an inquiry from the Licensing Authority, Chandigarh where the original license was allegedly issued, but, however, the authority did not issue any certificate with regard to the authenticity of the driving license. From the material produced by the insurer it is prima facie evident that the license had not been issued by the Licensing Authority at Chandigarh and the endorsement on the license may not be genuine or correct. In the present case, an application has been filed only to summon the officials from the respective Licensing Authority to prove the genuineness of the license placed on record. It is the case of the insurer that the original license 5 issued by the Licensing Authority is fake and, therefore, the subsequent endorsement by the Licensing Authority at Shimla is also illegal. In my view, the insurer had already taken the defence before the trial Court. It is true that steps for examining the authorities ought to have taken but the insurer in its wisdom, on the basis of legal advice had placed on record the certificate of the Investigator which did not find favour with the trial Court. In my view, it would not amount to filling up the lacunae. For proper and complete adjudication of the entire controversy in issue necessary evidence must come on record. I see no reason as to why the present application be not allowed. In the facts and circumstances, the present application is allowed. Consequently, the matter is remanded back to the Tribunal for adjudication of issue No.3 alone. The Tribunal shall decide the same after affording two opportunities to the appellant for producing its entire evidence. Only if some official witnesses who do not come on their own are necessarily required to be summoned the court would pass order. In rebuttal, it shall be open for the owner to lead any evidence for which purpose two opportunities would be afforded. No further opportunity shall be afforded by the Tribunal. The Tribunal shall decide the issue uninfluenced of any observation made herein. Since findings on issue Nos. 1 and 2 already stand confirmed, there is no need for issuance of notice to the claimant. The matter being old, the Tribunal 6 shall endeavour to decide the issue as expeditiously as possible and not later than 31st March, 2009. The owner shall also be entitled to cost of Rs.11,000/- from the insurer. The owner and the Insurance Company shall appear before the Tribunal on 29th October, 2008. The record of the Tribunal along with a copy of this order be sent immediately. (Sanjay Karol), Judge. September 23, 2008(R)