IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 330 of 2004 Date of Decision: 17th October, 2008 Oriental Insurance Company Appellant Versus Sohan Singh Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Dr.Lalit Sharma, Advocate. For respondent No.1&5: Mr.Sanjeev Kuthiala, Advocate. For respondents 2 & 3: Mr.Ajay Sharma, Advocate.. For respondent No.6: Mr. Anand Sharma, Advocate. For respondents No.4: None. Sanjay Karol, J. (Oral) The present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), has been filed against the award dated 29.5.2004 passed by Motor Accident Claims Tribunal (II), Una, in MAC Petition No. 23/2K/99, titled as Sohan Singh vs. Varinder Kumar alias Babbu and others. Claimant Sohan Singh, on 15.7.1995 was travelling in Mini Bus No. HP-20-4801, which met with an accident with vehicle No. PUC- 4785, being driven by Shri Varinder Kumar and owned by Shri Sukhvir Singh. The claimant sustained injuries and consequently filed a claim Whether the reporters of Local Papers are allowed to see the Judgment? 2 petition under Section 166 of the Act, claiming a compensation of Rs.25 lacs. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether petitioner Sohan Singh sustained injuries on his person due to rash and negligent driving of respondents 1 and 4, as alleged? OPP 2. In case issue No.1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the respondent no.1 was holding a valid and effective driving licence at the relevant time, as alleged? OPR-3 4. Whether truck No. PUC-4785 was being driven in violations of the terms of the insurance policy, as alleged? OPR. 5. Whether the petition is bad for mis-joinder of the parties, as alleged? OPR-3. 6. Whether Mini Bus was being driven without any valid and effective driving licence as alleged? OPR-6 7. Whether the Mini Bus was being driven in violation of the terms of the Insurance Policy as alleged? OPR-6. 8. Whether the petition is time barred? OPR-6 9. Relief. Appreciating the evidence led by the parties and also the material placed on record, the Tribunal found that the accident had occurred due to rash and negligent driving of Shri Varinder Kumar, driver of vehicle PUC-4785, which was owned by Shri Sukhvir Singh. Driver of Bus No. HP- 20-4801 was found to be not negligent and as such no liability was fastened 3 on the owner of the said vehicle Shri Mangat Ram or its Insurer M/s United India Insurance Company. Compensation of a sum of Rs.32,746.10 was awarded to the claimant towards pecuniary and non-pecuniary damages. Since the offending vehicle in question was insured with the Oriental Insurance Company, the liability to pay the compensation was fastened upon the Insurer - present appellant. The present appeal has been filed only by the said Insurer. The claimant, owners or the drivers of the respective vehicles have not filed any appeal or cross-objections, therefore, the scope of the present appeal is narrow. In the present appeal, the main question raised by the Insurance Company is that sufficient opportunity was not afforded to lead evidence to prove its defence that the driving licence held by Shri Varinder Kumar was fake and not valid. According to the appellant, an application under Section 151, CPC for adducing additional evidence was filed, which was wrongly rejected by the Tribunal in terms of order dated 13.5.2004. Dr. Lalit Sharma, while making his submissions has clarified that he does not propose to challenge the findings with regard to Issues No.1, 2 and 4 to 8. The Record reveals that issues were framed on 6.9.2001 and on that date itself the claim petition was clubbed with Claim Petition No.RBT 5/2K/98, titled as Baba Sarabjot Singh vs. Varinder Singh. However, on 5.5.2004 the appellant moved the application in question disclosing that during the pendency of the claim petition after exercising due diligence the report of RTO, Alwar (Rajasthan) was obtained, which 4 revealed that the driving licence of Shri Varinder Kumar was fake and, therefore, opportunity to lead additional evidence by examining Licensing Clerk of RTO, Alwar be allowed. The said application was disposed of by the Tribunal in terms of the following order dated 13.5.2004:- “Reply to the application U/S 151 CPC filed. Heard. On behalf the insurance company an application U/S 151, CPC have been moved with a view to examine the Clerk of the Motor licensing authority Alwar in order to determine the validity of the D.L. of respondent No.1 Varinder Kumar. Annexed with the application is the certificate issued by the Motor Licensing Authority which shows that driving licence bearing No. 63565/84 was issued in the name of Varinder Kumar s/o Anant Ram. Per the reply on the file the plea have been taken that the name might have been inadvertently written as Narender Kumar instead of Varender Kumar and since D.L. the copy of which have been placed on record bearing the same number and the father of Varender Kumar is Anant Ram, therefore, the D.L. relied upon by the respondent No.1 as such is valid one and thus there is no necessity whatsoever to call the concerned official from a far of place. In other words the allowing of the application otherwise would tantamount to delay in disposal of the petition which is already pending since long. After having perused the copy of the D.L. on record as possibility of typographical mistake as such cannot be ruled out with respect to the name of the licence holder moreso as mistake appears to be only with respect to the initial alphabet of the name as rest of the alphabets are the same in the name of Narender and Varender. The fact that father name is identical coupled with the additional circumstance of bearing the same licence number as such goes to postulate that allowing of the application would not 5 serve the ends of justice rather would unnecessarily result in the delay of the proceedings. Suffice it to say the mere typographical mistake as such in the name of the holder of the D.L. thus does not go to invalidate the D.L. relied upon by the respondent which D.L. otherwise also have been renewed from time to time which again goes to fortify the assertion of the respondent D.L. holder that he had obtained the D.L. from the Motor Licensing Authority Alwer. It will not be out of place to mention that the photograph on the D.L. is that of the respondent No.1 which again rules out the possibility that the D.L. was obtained in the name of some other person. Resultantly the application sans merits and is dismissed accordingly. Application stands disposed of and after its due registration be tagged with main file, no other evidence is to be led by respondent No.3. Therefore, evidence of respondent No.3 is closed by the order of Court. List the case for final arguments on 18.5.2004.” While deciding Issue No. 3 the Tribunal held that since the order dated 18.10.2003 i.e. in this matter order dated 13.5.2004 (wrongly typed out order dated 18.10.2003, which in fact was passed in the main claim petition, referred above) had attained finality, the same was binding upon the Insurance Company. In New India Assurance Co., Shimla vs. Kamla and others, (2001) 4 SCC 342, the Apex Court has held that the Insurance Company must, under law, be given the opportunity to substantiate its contention that the document is a fabricated one. Considering the report placed on record by the Insurance Company, the Tribunal could not have taken upon itself the task of determining the issue of fakeness. In my view, adequate opportunity ought to have been afforded to the Insurance Company to lead evidence and prove 6 its defence. From the record, it is evident that the opportunity to lead evidence arose only when the report from the RTO, Alwar was obtained subsequent to the recording of the statement on 23.8.2002 when all of the respondents stated that they do not wish to lead any evidence. From the record nothing could be shown that it was the appellant herein who had been delaying the matter. The delay was on account of examination of the claimant’s witnesses therefore, the impugned order cannot be sustained. Even the Tribunal was not certain that there was a typographical error in the driving licences issued by the authorities. The Tribunal has moved on the basis of presumption and has itself observed that “possibility of typographical mistake cannot be ruled out”. The Insurance Company desires to lead evidence only on Issue No.3. The decision of this issue shall have no bearing with regard to amount payable to the claimant or the other issues concerning the other parties. This is a dispute inter se between the insured and the Insurer. The claimant, owner of Bus No. HP-20-4801 as also its insurer need not suffer for the dispute inter se between the Insurer and insured of the vehicle in question. Since the Insurance Company did not get the adequate opportunity to put forward its case, the case is remanded back to the Tribunal below only to decide Issue No. 3. This issue shall be decided after giving adequate opportunity to the Insurer, the owner and the driver of vehicle No. PUC-4785 to produce its evidence. First, the evidence of the Insurance Company shall be recorded and thereafter the evidence of the owner/driver shall be recorded. 7 The quantum of compensation and the entitlement of the claimant to claim compensation have not been disturbed. The amount stands deposed by the Insurance Company, which partly stands disbursed to the claimant. The balance amount shall also be disbursed to the claimant and shall not be refunded back to the Insurance Company. It is clarified that only the dispute between Insurance Company and the driver/owner is to be decided. The claimant and other parties need not appear before the Tribunal below. In case the Tribunal comes to the conclusion that the Insurance Company is not liable to pay the amount, then it will direct that the amount paid by the Insurance Company shall be recovered by it from the owner and/ or the driver in execution proceedings before the Tribunal. The concerned parties, appearing through their learned counsel are directed to appear before the Tribunal below on 14th November, 2008. The learned counsel for the appearing parties assure that they shall not in any manner delay the proceedings before the Tribunal and shall endeavour to have the matter decided as expeditiously as possible. It is also expected of the Tribunal to decide the matter at the earliest and positively before 30th June, 2008. With the above observations, the present appeal is disposed of. However, it is clarified that these observations need not in any way affect the judgment of the Tribunal who shall decide the issue in question on its own merits. The Registry is directed to send the record of the Tribunal immediately alongwith a copy of this order. 17th October, 2008 (Sanjay Karol) (C) Judge.