FAO No.835 of 1993 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objections No.43-CII of 1993 IN/& FAO No.835 of 1993 (O&M) Date of decision: December 1, 2009. Oriental Insaurance Co. Ltd. ...Appellant(s) v. Manu Ram & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Shri Neelesh Bhardwaj, Advocate, for the appellant. Rakesh Kumar Garg, J. (Oral): This judgment shall dispose of FAO No.835 and Cross Objections No.43-CII of 1993; FAO No.836 and Cross Objections No.2- CII of 2008 and FAO No. 837 of 1993 and Cross Objections No.44-CII of 1993 which have arisen out of impugned awards dated 2.2.1993 passed by MACT, Ropar separately in each claim petition filed by the respondent- claimants, claiming compensation on account of death of Joginder Kumar, Dhani Ram and Baldev Raj, caused due to rash and negligent driving of the offending vehicle, i.e., bus No.PAB-8561 by Baljit Singh – respondent No.3 in a motor vehicular accident. The claim petitions were contested by the appellant-insurance company raising preliminary objections with regard to maintainability of the claim petitions and taking the ground that the driver of the offending vehicle FAO No.835 of 1993 -: 2 :- was not having a valid driving licence at the time of accident. On the pleadings of the parties, the following issues were framed:- “1. Whether Joginder Kumar died due to the rash and negligent driving of the bus PAB-8561 by Baljit Singh respondent? OPP 2. To what amount if any the claimants are entitled and from whom? OPP 3. Relief” On appreciation of the evidence on record, the Tribunal held that the accident in question was caused due to rash and negligent driving of the offending vehicle by respondent No.3 – Baljit Singh and granted compensation to the claimants. While granting compensation, the Tribunal held that the liability to pay compensation to the claimants is of the insurer/appellant as the offending vehicle was duly insured with the appellant and in the circumstances of the case, Baljit Singh – respondent is to be presumed to have hold a valid driving licence at the time of the accident. Challenging the aforesaid findings of the Tribunal to the extent of liability to pay compensation, the insurer of the offending vehicle has filed these appeals on the ground that the original licence of the driver Baljit Singh was fake and even if the same was renewed by a competent authority, the same cannot be held to be a valid and effective driving licence and, therefore, the findings of the Tribunal in this regard are liable to be set aside and reversed in favour of the appellant-insurance company and the appellant cannot be fastened with the liability. In support of his arguments, learned FAO No.835 of 1993 -: 3 :- counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court, titled as National Insurance Co. Ltd. v. Kamla, 2001(3) RCR (Civil) 716. The claimants have also preferred Cross Objections claiming enhancement in the compensation. I have heard learned counsel for the appellant. It will be useful to refer to the observations of the Tribunal on the point in issue, which read as follows:- “Respondent No.3 Insurance company had raised a few objections in the written statement, pleading that it is not liable to pay any compensation. No separate issues were framed on these pleas by my learned predecessor. Those objections are discussed here. It was also pleaded that claim petition is not maintainable in the present form. There is no defect in the form of the claim petition. It is maintainable. The objection is not tenable. The next contention of the respondent No.3 insurance company is that the driver of bus No.PAB 8561 had no valid driving licence at that time of the accident. The Insurance company is not, therefore, liable. The original driving licence was on the file of the criminal case. PW3 Bakshish Singh Ahlmad brought the file and proved the original driving licence of Baljit Singh respondent. Its copy is R3. It was valid upto 14.3.91. Baljit Singh respondent also appeared as RW1. R1 is copy of the driving licence. He deposed FAO No.835 of 1993 -: 4 :- that he had the driving licence at the time of the accident. It was issued from Bhilwara in Rajasthan State. Its No. is B/4676/Bhilwara/83. It was valid from 15.3.1983 to 14.3.86. It was renewed twice by the licencing officer Khanna from 14.3.1986 to 14.3.89 and from 15.3.89 to 14.3.91. Pali Ram examined himself as RW2. He is proprietor of Pali Transport company (respondent). Bus PAB/8561 in question is owned by this Transport Company. Pali Ram deposed that Baljit Singh respondent used to drive bus No.PAB/8561. He employed him in 1988. Earlier he worked as driver in Patiala bus company. He had seen the driving licence of Baljit Singh. While employing him, the driving licence was renewed from Khanna. He accepted his driving licence as genuine and gave him employment. Baljit Singh drove their bus perfectly before this accident. They had no complaint about his driving. He was an expert driver. RW Pali Ram cross-examined and his cross-examination revealed that he got verified from Khanna the driving licence of Baljit Singh. According to him it was renewed from there correctly. Baljit Singh respondent asserts that his driving licence is genuine and valid. Pali Ram owner of the offending bus also asserts that he took the driving licence of Baljit Singh as genuine and gave him employment on its bus in 1988. He had been driving the bus perfectly FAO No.835 of 1993 -: 5 :- since 1988 till 28.4.1990 when he unfortunately caused this accident. Every presumption and intendment is in favour of respondents No.1 & 2 that the driving licence of Baljit Singh is valid and genuine. The contention of the Insurance company is that it is fabricated document. It was not issued from Bhilwara. R2 is letter of surveyor and loss Assessor. R3 is the certificate purported to be issued by the Office of DTO Bhilwara. It is argued by learned counsel for the insurance company on the basis of R3 that the driving licence of Baljit Singh respondent is forged. According to this certificate licence No.4676 dated 1.9.1978 was issued to Kumari Neeta Jhunjhunwala daughter of Kishore Lal for light motor vehicle and was valid upto 31.8.81. The respondent has given the number of his driving licence as B/4676/Bhilwara/83. The certificate R3 pertains to driving licence No.4676 dated 1.9.78. This certificate therefore does not pertain to the driving licence of Baljit Singh which bears No.B/4676/Bhilwara/83. The verification if any should have been got by the Insurance company in respect of series B for the year 1983. The verification of 1.9.1978 has no relevance when the cotnention of the respondent is that his licence was issued in 1983. It was renewed twice by the Licencing Authority Khanna. There is no dispute about it. The dispute was only regarding its initial FAO No.835 of 1993 -: 6 :- issuance from Bhilwara. Baljit Singh respondent in these circumstances would be presumed to have held a valid driving licence at the time of the accident. Section II(3b) of the Motor Vehicles Act, 1988 enjoins upon the authority who has not issued the licence to whom an application for renewal of licence to drive a transport vehicle is made, to verify the antecedents of the applicant. The licencing authority Khanna must have made this verification before renewing the driving licence twice. The driving licence of Baljit Singh was found correct and therefore it was renewed twice. Moreover the respondent insurance company is required to prove not only that Baljit Singh driver was not holding a licence at the time of the accident but also to prove that he was disqualified from holding or obtaining a licence or never had any licence at all. This is lacking in this case. Baljit Singh respondent had been driving the bus since long. It would be presumed that he had knowledge of driving. The authorities New India Assurance Company Appellant v. C.B. Shanker and others respondent, 1986 ACJ 82, Maharashtra State Road Transport Company Appellant vs. Babu Lal Daud Mulani and others respondent 1985 ACJ 282 and Radhe Sham and another Appellant Vs. Nasib Husain and others respondent, 1991(1) ACJ 755 can be referred in this context. The Insurance Company thus FAO No.835 of 1993 -: 7 :- can not evade its liability. They have failed to prove by leading cogent evidence that the driver was not holding a valid driving licence at the time of the accident.” From the aforesaid observations, it is crystal clear that there is no dispute with regard to the fact that initially the driving licence of respondent No.3 was issued from Bhilwara (Rajasthan) and was subsequently renewed twice from the licencing authority at Khanna from 14.3.1986 to 14.3.1989 and 15.3.1986 to 14.3.1991. According to the appellant, the aforesaid driving licence, initially issued in favour of respondent No.3 from Bhilwara, was fake and, therefore, merely because the same was renewed subsequently, it will not be transformed into a genuine/valid driving licence. In spite of the fact that the appellant raised a plea in its pleadings that respondent No.3 had no valid driving licence at the time of alleged accident, no specific issue was claimed by it and the aforesaid point in issue was decided by the Tribunal under issue No.2. As per the assertion of respondent No.3 who also appeared as RW1 and produced copy of driving licence Ex.R1 to prove that originally driving licence was issued from Bhilwara, no evidence has been produced by the appellant to controvert the aforesaid fact. The contention of the insurance company that the aforesaid driving licence is a fabricated document, is not supported by any evidence produced by the appellant. To prove the aforesaid contention, the appellant had placed reliance upon a letter of Surveyor Ex.R2 and Certificate Ex.R3 purported to be issued by the office of DTO, Bhilwara. However, the aforesaid documents have not been proved on record in accordance with law. Neither the aforesaid Surveyor, who issued the report Ex.R2, nor any official from the office of DTO, FAO No.835 of 1993 -: 8 :- Bhilwara, who issued certificate Ex.R3, were produced. Even otherwise, according to this certificate Ex.R3, licence No.4676 dated 1.9.1978 was issued to one Kumari Neeta Jhunjhunwala whereas the respondent No.3 has given the number of his licence, as per Ex.R1, as B/4676/Bhilwara/83. Thus, the certificate Ex.R3 does not pertain to the driving licence of respondent Baljit Singh which bears No.B/4676/Bhilwara/83. Thus, the verification as per Ex.R3 as produced by the appellant has no relevance and therefore, on the basis of the aforesaid evidence produced by the appellant, it cannot be held in the negative that respondent Baljit Singh was not issued a valid driving licence initially by the Bhilwara (Rajasthan) authorities and no fault can be found with the findings of the Tribunal in this regard. No doubt, the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Kamla 2001(3) RCR (Civil) 716, has held that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged and a mere renewal cannot transform a fake licence as genuine, however, in the present case, as noticed above, it cannot be held that the initial licence issued to the appellant was fake and, therefore, the judgment in Kamla's case (supra) is not applicable. It is also useful to point out at this stage that in National Insurance Co. Ltd. v. Swaran Singh, (2004)3 SCC 297, the Hon'ble Supreme Court has held as under:- “(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for FAO No.835 of 1993 -: 9 :- avoiding liability by the insurer. 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. 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 licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) 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. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his FAO No.835 of 1993 -: 10 :- qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.” In the present case, Pali Ram, who appeared as RW2, is the proprietor of the offending vehicle in question. It is given in his testimony that Baljit Singh used to drive the offending vehicle; he was employed in 1988; and he had earlier worked in Patiala Bus Service and he had seen the driving licence of Baljit Singh while employing. According to Pali Ram, at that time the driving licence was renewed from Khanna and he accepted the same as genuine and gave him employement. He also stated Baljit Singh was driving the bus perfectly and there was no complaint about his driving and he was an expert driver. Thus, there is ample evidence on record to establish that while giving appointment as driver to Baljit Singh, respondent No.3, the owner of the bus has taken all precautions and care about the FAO No.835 of 1993 -: 11 :- driving skills of the aforesaid respondent and, therefore, he had correctly presumed that the driving licence of Baljit Singh was valid and genuine. The judgment in Swaran Singh's case (supra) has not been diluted in any manner in the case of Kamla (supra). Even otherwise, as per the aforesaid authority itself, an opportunity was given to the appellant to prove that the licence in question was not validly issued initially. Despite an opportunity granted, the appellant has failed to prove the factum of the driving licence being fake. Thus, I find no merit in these appeals. The compensation granted to the respondents is adequate and sufficient. No material evidence has been ignored while determining compensation. Thus, the Cross Objections are also without any merit and deserve to be dismissed. No other point has been urged. Thus, all the appeals and cross objections are dismissed. December 1, 2009. [ Rakesh Kumar Garg ] kadyan Judge