IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 278 of 2008 United India Insurance Company Ltd. … Appellant Vs Smt. Chandra Bisht & others … Respondents Sri D.S. Patni, learned counsel for the appellant Sri Kishore Kumar, Advocate, holding brief of Sri D.D. Bhatt, learned counsel for the respondent Nos. 1 to 5. Sri D.K. Sharma, learned counsel for the respondent Nos. 6 to 8 Hon’ble B.C. Kandpal, J. (Oral) This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/Insurance Company against the judgment and award dated 01.04.2008 passed by Motor Accident Claim Tribunal/District Judge, Champawat in Motor Accident Claim Case No. 12 of 2006, Smt. Chandra Bisht & others Vs Imran Husain & others. 2. Brief facts of the case are that on 24.06.2006, the deceased Chakra Bahadur Bisht along with his wife Smt. Chandra Bisht was travelling by Mahindra Jeep (Delivery Van) No. UP24B/4778 from Banbassa to Pillibhit for medical treatment of his wife Smt. Chandra Bisht. When the said vehicle reached near Mohalla Civil Lines, District Pilibhit, the said vehicle met with an accident, due to rash and negligent driving of its driver. The deceased – Chakra Bahadur received serious injuries and afterwards succumbed to injuries. At the time of the accident, the deceased was 28 years of age and was working as a Head Constable in the Government of Nepal and used to earn Rs. 97,103.10 per annum. Hence, an amount of Rs. 18,50,000/- was claimed as compensation. 3. Thereafter notices were issued to the opposite parties. In spite of sufficient service of notice, the opposite 2 party No. 1 – owner of vehicle No. UP24B/4778 did not appear before the court below, hence, the claim petition proceeded ex- parte against him. The opposite party No. 2/United India Insurance Company Ltd. contested the claim petition by filing written statement before the Tribunal and denied the allegations. The notices were served upon respondent Nos. 3 to 5 through publication but they did not put in appearance and the court below proceeded ex-parte against them. 4. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Therefore, both the parties led evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 7,08,620/- and also directed that the amount paid within forty days vide judgment and award dated 01.04.2008 and in default interest @ 8% per annum shall be paid from the date of award till the final payment. 5. Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company has preferred this appeal before this Court. 6. Heard Sri D.S. Patni, learned counsel for the appellant, Sri Kishore Kumar, Advocate, holding brief of Sri D.D. Bhatt, learned counsel for the respondent Nos. 1 to 5, Sri D.K. Sharma, learned counsel for the respondent Nos. 6 to 8 and perused the record. 7. As far as the factum of accident is concerned, the finding recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of 3 the Mahindra Jeep No. UP24B/4778 appears to be perfectly justified and I am in total agreement with the findings recorded by the Tribunal in this regard. 8. Learned counsel for the appellant has submitted before the Court that the Tribunal has held that the deceased was travelling in the vehicle in question as a gratuitous passenger and in spite of that, the Tribunal has imposed the liability upon the Insurance Company and gave the recoverable right from the owner of the vehicle. 9. In order to resolve the sole controversy, I have gone through the entire record available before me. As far as this direction issued by the Tribunal that the Insurance Company shall pay the amount of compensation to the claimant but shall have a recoverable right of the amount of compensation from the owner of the vehicle, is concerned that does not appear to be justified in view of the latest judgment of the Hon’ble Apex Court in National Insurance Company Ltd. Vs Prema Devi & others reported in 2008 (2) Supreme Court Cases 205. The Hon’ble Apex Court in the aforesaid case has held in paragraph nos. 14 to 17, which reads as under:- “14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the insurer would have no liability therefor. 15. Our view gets support from a recent decision of a three-Judge Bench of this Court in New India Assurance Company Ltd. Vs Asha Rani & others (2002 (8) Supreme 594) in which it has been held that Satpal Singh’s case 4 (supra) was not correctly decided. That being the position, the Tribunal and the High Court were not justified in holding that the insurer had the liability to satisfy the awards. 16. This position was also highlighted in Oriental Insurance Company Ltd. Vs Devireddy Konda Reddy & others (2003(2) SCC 339). Subsequently also in National Insurance Company Ltd. Vs Ajit Kumar & others (2003(9) SCC 668), in National Insurance Company Ltd. Vs Baljit Kaur & others (2004(2) SCC1) and in National Insurance Company Ltd. Vs Bommithi Subbhayamma & others (205 (12) SCC 243), the view in Asha Rani’s case (supra) was reiterated. 17. Above being the position, the impugned order of the High Court is not sustainable and is set aside. It is open to the claimant to recover the amount awarded from the owners of the offending vehicles. 10. In the instant case, it is not disputed that the deceased was travelling as a gratuitous passenger in the vehicle, which met with an accident. The offending vehicle in question was a delivery van, hence, it was being used for light goods carriage vehicle. The deceased was working in the Nepal Government as a Head Constable and was travelling in the vehicle along with his wife as a gratuitous passenger. There was no insurance for the vehicle in question with regard to the carriage of the passengers at the time of the accident. The Tribunal has also assessed the entire evidence in this regard and has come to the conclusion that the deceased had been travelling as a gratuitous passenger at the time of the 5 accident. Thus, it is a clear-cut case, which indicates that there was a violation of insurance policy in the instant case. 11. In view of the aforesaid circumstances as well as in the light of the judgment of the Hon’ble Apex Court, the judgment and award passed by the Tribunal is liable to be modified to an extent that instead of paying the amount of compensation by the Insurance Company, it will be the liability of the owner of the vehicle to pay the amount of compensation to the claimants. The direction recorded by the Tribunal in the impugned judgment and award to this regard is hereby set aside. It is open to the claimants/respondents to recover the amount, so awarded, from the owner of the offending vehicle. However, if any amount deposited by the Insurance Company with the Tribunal concerned, the same shall be given to the Insurance Company on moving an application in this regard. 12. For the reasons stated above, the appeal partly allowed. The impugned judgment and award is modified upto an extent that the instead of paying the amount of compensation by the appellant/Insurance Company, it will be the liability of the owner of the vehicle to pay the amount of compensation to the claimants. 13. The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 09.07.2009 ASWAL 6 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 588 of 2005 New India Assurance Company Ltd. … Appellant Vs Smt. Kusum Lata & others … Respondents Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant Sri Tapan Singh, Advocate, holding brief of Sri Lok Pal Singh, learned counsel for the respondent No. 1 Sri Rajendra Dobhal, learned Senior advocate, assisted by Sri Gopal Dutt, learned counsel for the respondent No. 2 Sri K.K. Shah and M.K. Goyal, learned counsel for the respondent No. 4 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant/Insurance Company – insurer of the truck No. URM/8307, which is involved in the accident, which took place on 24.01.2000 at about 04:30 p.m. near Araghar at Haridwar Road against the judgment and award dated 15.10.2005 passed by Motor Accident Claims Tribunal/F.T.C. – Vth, Dehradun in M.A.C.T. Case No. 211 of 2001, Smt. Kusum Lata Vs Om Prakash & another. 2. Brief facts of the case are that on 24.01.2000 at about 04:30 p.m., Ashwani Kumar was going on a scooter No. UP07/4584 along with his friend Ravindra Singh Negi and when they reached near Araghar-Haridwar Road, suddenly, a truck bearing registration No. URM/8307 coming from the opposite direction, which was being driven by its driver in a very rash and negligent manner, hit the said scooter, in which, Ashwani Kumar fell down on the road and crushed from the tyre of the truck and died at the spot. The claimant is the mother of the deceased and according to the claim petition, the deceased was 18½ years of age and after the death of her husband, the deceased was the only bread earner of the 7 family. Hence, an amount of Rs. 9.00 lacs was claimed as compensation. 3. Thereafter, notices were issued to the opposite parties. On the receipt of notices, the opposite party No. 2 – owner of truck No. URM/8307 contested the claim petition by filing the written statement admitting the factum of accident. It has also been alleged that on the date of accident, the driver was having the valid and effective driving licence and the vehicle in question was insured with the New India Assurance Company Ltd., therefore, the liability to pay compensation lies upon the insurer of the vehicle. 4. The opposite party No. 3/Oriental Insurance Company Ltd. – insurer of the scooter No. UP07/4584 also contested the claim petition denying the allegations made in the claim petition. It has also alleged that the driver of the scooter was not having the valid driving licence. 5. The opposite party No. 4 – The New India Assurance Company Ltd. also contested the claim petition on the ground that the age of the deceased was 16 years and he was not having the valid driving licence on the date of accident. Therefore, the claim petition is liable to be dismissed on the above grounds. 6. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues in the claim petition. Thereafter, both the parties led evidence in support of their cases. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal has decreed the claim petition for a sum of Rs. 1,14,500/- 8 against the appellant/The New India Assurance Company Ltd. vide judgment and award dated 15.10.2005. 7. Feeling aggrieved by the aforesaid judgment and award, the appellant/Insurance Company has preferred this appeal before this Court. 8. Heard Sri V.K. Kohli, learned Senior Advocate, assisted by Sri I.P. Kohli, learned counsel for the appellant, Sri Tapan Singh, Advocate, holding brief of Sri Lok Pal Singh, learned counsel for the respondent No. 1, Sri Rajendra Dobhal, learned Senior advocate, assisted by Sri Gopal Dutt, learned counsel for the respondent No. 2, Sri K.K. Shah and M.K. Goyal, learned counsel for the respondent No. 4, and perused the record. 9. As far as the factum of accident is concerned, the findings recorded by the Tribunal that the accident took place on account of the rash and negligent driving of the driver of the offending truck, that appears to be perfectly justified and I am in total agreement with the findings recorded by the Tribunal in this regard. 10. Sri V.K. Kohli, learned Senior Advocate appearing on behalf of appellant/insurer of truck No. URM/8307 has confined his argument only to this aspect that the Tribunal has clearly held in the impugned judgment and award that the respondent No. 2 was not having the valid and effective driving licence on the date of accident and in spite of that the Tribunal imposed the liability of compensation upon the appellant, which appears to be perverse in the eye of law. 9 11. As the appeal has been filed by the appellant/Insurance Company denying its liability due to the fact that the driver of the offending vehicle was not having valid and effective driving licence, therefore, the only question is to be decided by this Court relates to the genuineness of the driving licence of the driver – Om Prakash. Apart of the legal aspect of the case, the important point involved in this case is as to whether it would be the liability of the Insurance Company to pay the amount of compensation, in case, where during the course of the proceedings before the Tribunal, it was specifically pointed out that the driving licence of the driver – Om Prakash, who was driving the offending truck in question, was fake. The Tribunal has fell in error in observing that it was the duty of the Insurance Company to establish that it was in the knowledge of the owner of the vehicle in question that the driver of the offending truck was disqualified for plying the truck and was not having effective and valid driving licence on the date of accident. The Tribunal has also referred several judgments of the Hon’ble Apex court on this point but I am of the view that all the judgments referred by the trial court in the impugned judgment and award, do not apply to the facts and circumstances of the case, for the reasons that in the instant case, the Insurance Company has produced employee of the R.T.O., Moradabad from where the alleged licence was issued in the name of the driver of the truck – Om Prakash and this witness has stated before the Tribunal that no such licence, filed by the owner before the Tribunal, had ever been issued from the Office of the R.T.O., Moradabad. The alleged licence has an endorsement of the driving of the vehicle in the hill routes but only that endorsement would not make the false driving licence a valid one, as has been observed by the Hon’ble Apex Court in New 10 India Assurance Company Ltd. Vs Kamla reported in AIR 2001 SCW 1340. 12. Learned Senior Counsel appearing on behalf of the owner Sri Rajendra Dobhal has submitted that in view of the several judgments of the Hon’ble Apex Court, it is the burden on the part of the Insurance Company to establish that the owner had knowledge with regard to the ineffective and forged driving licence of the driver and in absence of any such evidence, it could not be presumed, by the court that the owner, intentionally permitted the driver to ply the vehicle knowing this fact that the driver had no qualification for driving the vehicle and in fact he was in possession of fake and invalid driving licence. My attention has been invited towards following judgments of the Hon’ble Apex Court:- 1. United India Insurance Company Ltd. Vs Lehru reported in AIR 2003 Supreme Court 1292 2. National Insurance Company Ltd. Vs Swarn Singh reported in 2004(3) SCC page 297. 3. National Insurance Company Ltd. Vs Geeta Bhat reported in SCC 2008 (12) page 426. 13. I have closely perused the judgments cited before me by the learned counsel for the owner of the vehicle and I am of the view that this case is based on entirely different facts and circumstances. In the instant case, the Insurance Company had taken the specific plea in paragraph 19 of the written statement that during the investigation, it came in the knowledge of the Insurance Company that no driving licence was issued in the name of driver – Om Prakash from the office of R.T.O., Moradabad and the driving licence filed by the owner of the offending vehicle was forged. The issue was 11 framed by the Tribunal in this regard, as issue no. 3 and the Tribunal has also recorded a categorical finding that the driver of the offending vehicle was not having any valid driving licence and rather the licence produced by the owner was forged one. The Insurance Company has discharged its burden by producing the witness from the office of the R.T.O. Moradabad who categorically stated that licence No. 0- 8427/MBD/90 has never been issued from the office of the R.T.O., Moradabad. Therefore, once this fact has been brought in the knowledge of the owner of the vehicle then the owner of the vehicle should have adopted any measure or should have produced any evidence before the Tribunal which would have indicated that the driving licence of driver – Om Prakash was valid and effective on the date of accident, but the owner has not discharged his burden in any manner in rebuttal. 14. It is important to add this factual aspect here that the owner of the vehicle Sarvanand Dobhal appeared before the Tribunal as opposite party No. 2 and in his cross examination at paragraph 29, he has specifically stated that he verified the driving licence of Om Prakash on telephone and he was informed that the driving licence was valid. He has further deposed that he received information on the telephone through his friend from Moradabad. He has also stated that he verified the driving licence of the driver – Om Prakash after 15-20 days when he kept Om Prakash in service as driver. He has also stated that he does not know as to Insurance Company found the alleged driving licence of the driver – Om Prakash as forged during investigation. This evidence of Sarvanand Dobhal – owner of the truck clearly indicates towards this aspect of the matter that he had an information that the driving licence of the driver – Om Prakash was found 12 fake on the basis of the evidence of the clerk produced by the Insurance Company from the office of the R.T.O., Moradabad and thereafter, it was the burden on the part of the owner of the vehicle to show by any cogent and reliable evidence that the driving licence was not at all fake and forged and in fact it was a valid driving licence. 15. In view of the provision of Section 106 of the Evidence Act, the burden to prove with regard to the fact which is especially within the knowledge of any person is upon the owner of the vehicle. Once the Insurance Company has adduced the evidence in order to show that the driving licence was fake and had at all not been issued by the R.T.O., Moradabad, then the owner should have come forward to show by any of the evidence that the driving licence was not fake and forged and in fact was valid. Therefore, I am of the view that once the Insurance Company has discharged its burden then the owner of the vehicle could not be exonerated from the liability. Once the Insurance Company has established that the insurer was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver, or one, who was not disqualified to drive at the relevant time then, it is the liability of the insurer to show that he exercised proper diligence and reasonable care in permitting the driver to drive the vehicle with valid and effective driving licence. 16. The Hon’ble Apex Court in a judgment (three-Judge Bench) in National Insurance Company Ltd. Vs Swarn Singh reported in 2004 (3) SCC page 297 has also observed that the breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in Section 149(2)(a)(ii) have to be proved to have been committed by the 13 insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for diving at the relevant time are not in themselves defences, available to the insurer against either the insured or third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver, or one, who was not disqualified to drive at the relevant time. 17. The Hon’ble Apex Court in the same case has further observed that the court cannot lay down any criteria as to how, said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. 18. The Hon’ble Apex Court has further observed that where an adjudication of the claim under the Act, the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence, in accordance with the provisions of Section 149(2), read with Section 149(7), has interpreted by the Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts, which it has been compelled to pay to the third party under the award of the Tribunal. 19. In the instant case, from the evidence available on the record, it is quite clear that the insurer has established this aspect that the driving licence issued in the name of the driver of the offending truck – Om Prakash was fake and it had never been issued from the office of R.T.O. Moradabad. Therefore, it was the duty of the owner of the vehicle to adduce the proper evidence before the Court to show that the driving 14 licence was valid and effective and this was in his knowledge that the driver was not having any fake driving licence and his driving licence was valid and effective on the date of the accident. 20. The owner of the vehicle has not taken any such step before the Tribunal during the course of trial, therefore, the finding recorded by the Tribunal suffers with illegality as far as Insurance Company would be liable to pay the amount of compensation for the reasons that the Insurance Company could not establish that the owner had no knowledge with regard to the fake driving licence of the driver at the relevant time of the accident. 21. For the reasons stated above, I am of the view that the impugned judgment and award is liable to be modified upto the extent that the amount of compensation awarded in favour of the claimant shall although be paid by the Insurance Company but Insurance Company will have a recoverable right of the same from the owner of the offending truck No. URM/8307 – Sarwanand Dobhal along with interest as indicated in the impugned judgment and award. 22. Accordingly the appeal is allowed. No order as to costs. 23. The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) 09.07.2009 ASWAL