1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : S.B. Civil Misc. Appeal No.51/1999. (National Insurance Co. Ltd. Vs. Smt. Sarla Devi & Another) DATE OF JUDGMENT : April 21th, 2009. P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Mr. Ghanshyam Vaishnav for the appellant. Mr. G.R. Goyal for the respondent(s). This miscellaneous appeal has been filed by the National Insurance Company, Jodhpur challenging the award dated 26.09.1998 passed by the Motor Accident Claims Tribunal, Sriganganagar in Civil Claim Case No.224/90, whereby, a sum of Rs.75,000/- was awarded to the claimant and the appellant National Insurance Company was held liable for payment of the entire amount of award with interest at the rate of 12 per cent with effect from 24.07.1990. Brief facts of the case are that a claim petition was filed before the Motor Accident Claims Tribunal, Sriganganagar, in which, it was stated that on 17.05.1990, at 4.30 P.M., son of the claimant was going on scooter towards Jawahar Nagar. At that time, one Matador bearing No.RNC 3651, which was being driven rashly and negligently at high speed by its driver Jaspal Singh, hit the scooter and knocked it down. As a result of the accident, 2 son of the claimant Arun Singal fell down from the scooter and received serious injuries on his head. He was taken to hospital, however, he succumbed to injuries on the way. In the claim petition, it was stated that age of Arun Singal was 15 years and he was pursuing business with his father and he was earning one thousand rupees per month, so also, he was brilliant student, therefore, a claim of Rs.8,10,000/- was filed by the claimant Smt. Sarla. The appellant insurance company filed reply to the claim petition and stated in the reply that owner of the scooter and insurance company where the scooter was insured have not been made party, therefore, the claim is not maintainable. It is also stated that the accident took place due to negligence of the scooter driver Arun Singhal and, further, refuted the fact of age of Arun and, so also, his being brilliant student and the fact that he earned Rs.1000/- per month. In the reply, it was specifically stated that no accident occurred with the vehicle RNC 3651 because no information was received by the insurance company, so also, driver of the Matador was not having valid driving licence and deceased Arun was also not having driving licence, therefore, no compensation can be awarded to the claimant. On the basis of the pleadings of the parties, the Tribunal framed as many as eight issues. At the trial of the case, claimant led evidence of A.W.-1 Atma Ram and A.W.-2 Ashok 3 Kumar and exhibited Ex.-1 power of attorney and Ex.-2 First Information Report. The insurance company produced witnesses N.A.W.-1 Amarchand Garg and N.A.W..-2 Ratan Kaushik. After hearing the arguments, the learned Tribunal decided all the issues separately and, ultimately, all the issues were decided in favour of the claimant and award of Rs.75,000/- was passed along with interest at the rate of 12% with effect from 24.07.1990. Aggrieved by the aforesaid award, the insurance company has filed this appeal under Section 173 of the Motor Vehicles Act. The main contention of the insurance company is that the learned Tribunal has erred in passing the impugned award holding the appellant liable for payment of the entire amount of award. The learned Tribunal has erred while not considering the material on record in right perspective and it is established law that the litigant is supposed to file claim petition with clean hands and correct facts; but, in this case, the claimant has suppressed material facts, therefore, the claim filed by the claimant has wrongly been allowed. As per the insurance company, the claimant has very cleverly set out the case that the accident took place due to rash and negligent driving of the vehicle Matador which is said to be insured with the appellant; but, in fact, systematic fraud has been played because the vehicle insured is entirely different than 4 the vehicle with which the accident occurred. As per the insurance company, the policy covers a Mahindra Pickup having engine No.FJU-600/200/D/0145FF but the vehicle in question by which the accident took place bears engine No.4S-69327 and chassis No.4S-693327; meaning thereby, the delinquent vehicle was not at all insured with the appellant. Therefore, simply by giving registration number the claimant filed the claim petition, upon which, the insurance company has been held liable. It is contended by learned counsel for the insurance company that the learned Tribunal has wrongly appreciated the evidence which clearly vitiates the impugned award. For the said purpose, it is submitted that by examining NAW Ratan Lal Garg, officer of the appellant insurance company has proved that vehicle in question was altogether different but his testimony has been discredited which is not proper. The appellant has also produced NAW-2, a person concerned from District Transport office to prove the fact with regard to the vehicle. Therefore, the impugned award is liable to be set aside. The insurance company further submitted that there is breach of specific term of the policy inasmuch as the driver was not having valid licence and this fact is also proved by the aforesaid two witnesses. But, issue No.3 has been wrongly decided by the Tribunal. The Tribunal has committed an error while giving clear conclusion that from perusal of the licence it is 5 not clear what kind of vehicle was driven by defendant No.1 under that licence. The learned Tribunal has wrongly concluded that the appellant (herein) has failed to prove the issue since the driving licence is on record and duly proved, the only question whether the licence authorizes the licence-holder to drive a particular vehicle or not. In this view of the matter, it is submitted by the insurance company that the appellant could not be held liable for any liability because the claimant herself has failed to prove that the driver was holding a valid licence. It is contended by the insurance company that the learned Tribunal has committed an error while not accepting the testimony of NAW-1 Ratan Lal Garg, officer of the appellant insurance company, therefore, it is submitted in the appeal by the insurance company that the claimant has not proved her case, so also, filed the claim petition while concealing material facts from the Tribunal; but, the Tribunal committed error while not accepting the appellant's evidence to disprove the claim of respondent No.1. In this view of the matter, as per the insurance company, the award passed by the Tribunal is totally erroneous and finding arrived at by the Tribunal is perverse and contrary to record. Per contra, learned counsel for the claimant vehemently argued that contention of the appellant cannot be accepted in view of the fact that in para 9 of the claim petition it is 6 specifically stated that the vehicle in question was insured with the National Insurance Company, Sriganganagar and, in the reply to the said contention, it is not refuted by the insurance company and only assertion is made that vehicle was not driven by Jaspal Singh; meaning thereby, the fact of accident is not disputed in the reply by the appellant. It is not disputed by the appellant company that the vehicle was insured with the insurance company. Learned counsel for the respondent vehemently submitted that upon perusal of the whole of the written-statement, Ex.-3 filed by the insurance company, it will be revealed that only assertion has been made that the accident was not caused by the vehicle RNC 3651. Further, it is also stated in para 10 of the written-statement that no accident took place by the said Matador with the scooter driven by deceased Arun Singhal; meaning thereby, the insurance company has completely denied the accident whereas FIR was filed and exhibited by the claimant which proves that the accident took place and one Arun Kumar was hit by Matador RNC 3651. The claimant has produced on record Ex.-2, copy of the FIR; meaning thereby, the documents filed by the claimant before the Tribunal were duly accepted and proved, therefore, on illegal grounds this appeal has been filed which deserves to be dismissed. It is further contended by learned counsel for the claimant 7 respondent that the contention of the appellant insurance company with regard to engine and chassis number deserves to be rejected simply on the ground that at the time of the accident , the vehicle which hit the scooter was bearing registration No.RNC 3651 and vehicle of the said registration number was insured with the appellant insurance company which is not disputed by the appellant; more so, in the written-statement, it is specifically mentioned in para 22 that if this Court comes to the conclusion that the insurance company is liable to pay the claim amount, then, the insurance company will be liable for claim up to the extent of terms and conditions of the insurance policy; meaning thereby, the appellant accepted that the vehicle was insured with it and, now, before this Court, strange plea has been taken that vehicle in question was having different engine number. Admittedly, no such issue was framed by the Tribunal and the learned Tribunal arrived at the finding that Jaspal Singh was having valid licence, therefore, no interference is required in the award passed by the Tribunal and this appeal deserves to be dismissed. I have considered the rival submissions. First of all, by cogent evidence viz., FIR and challan papers, it is proved legitimately and legally that the accident took place and son of the claimant was hit by the vehicle Matador bearing No.RNC 3651. This finding of the Tribunal is 8 based upon documentary evidence, therefore, the ground of the insurance company that no accident took place with the vehicle No.RNC 3651 is hereby rejected. Likewise, the finding with regard to possession of valid licence by driver Jaspal Singh also deserves to be upheld because the insurance company is not disputing that Jaspal Singh, driver was not having any driving licence; but, only refuting that he was not authorized to drive vehicle Matador. It is strange that in appeal suppression of material facts has been alleged whereas the insurance company itself has failed to take one stand that the accident was not caused by Matador No.RNC 3651 on 17.05.1990. On the one hand, in para 10 of the written-statement it is stated that no accident took place by the said vehicle, on the other hand, it is submitted that the vehicle RNC 3651 was insured with the insurance company but the said vehicle was not driven by Jaspal Singh. The said assertion has been made in para 9 of the written-statement filed before the Tribunal. The insurance company itself is taking contrary stand. On the one hand, it is stated in para 9 it is stated that the said vehicle was not driven by Jaspal Singh whereas during the trial they produced witnesses for the purpose of proving the fact that Jaspal Singh was not authorized to drive the said vehicle. If such type of contrary stand is taken by the insurance company, then, certainly it can be presumed that the 9 insurance company is hiding something from the Tribunal, therefore, such plea deserves to be rejected. I have also perused the finding of the learned Tribunal which is based upon cogent evidence, so also, the fact that the Tribunal has decided all the issues separately while taking into consideration oral as well as documentary evidence and held that the claimant has proved that her son Arun Singhal died in the accident when he was going towards Jawahar Nagar and, at that time, he was hit by the vehicle RNC 3651 which was driven by Jaspal Singh negligently and rashly. The said vehicle was insured with the appellant insurance company. In this view of the matter, it can very well be said that the Tribunal has considered the entire evidence and given the finding in right perspective issue-wise. Learned counsel for the respondent has invited my attention towards judgment of the apex Court in the case of Oriental Insurance Co. Vs. Zaharulnisha & Others, reported in 2008 AIR SCW 3251 and, so also, judgment of the apex Court in the case of National Insurance Co. Ltd. Vs. Geeta Bhat & Others, reported in 2008 AIR SCW 2534, in which, the apex Court has held that liability of the insurer to reimburse the owner is not absolved on the ground of driving licence found to be fake. Para 13 of the said judgment runs as under : “We would, therefore, assume that the licence 10 possessed by the 6th respondent, Gopal Singh was a fake one. Only because the same was fake, the same, having regard to the settled legal position, as noticed hereinbefore, would not absolve the insurer to reimburse the owner of a vehicle in respect of the amount awarded in favour of a third party by the Tribunal in exercise of its jurisdiction under Section 166 of the Motor Vehicles Act, 1988.” In the case of Oriental Insurance Co., the apex Court has held that liability of the insurer to satisfy decree passed in favour of third party is statutory. Relevant para 16 of the said judgment runs as under : “The judgment proceeds to hold that under the MV Act, holding of a valid driving licence is one of the conditions of contract of insurance. Driving of a vehicle without a valid licence is an offence. However, the question herein is whether a third party involved in an accident is entitled to the amount of compensation granted by the Motor Accidents Claims Tribunal although the driver of the vehicle at the relevant time might not have a valid driving licence but would be entitled to recover the same from the owner or driver thereof. It is trite that where the insurers, relying upon the provisions of violation of law by the assured, take an exception to pay the assured or a third party, they must prove a wilful violation of the law by the assured. In some cases, violation of criminal law, particularly violation of the provisions of the MV Act, may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or “so recklessly as to denote that the assured did not care what the consequences of his act might be”. The provisions of sub-sections (4) and (5) of Section 149 of the MV Act may be considered as to the liability of the insurer to satisfy the decree at the first instance. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed 11 in favour of a third party is also statutory.” In this view of the matter, I am of the opinion that all the grounds taken by the appellant insurance company in this appeal are baseless and have no foundation in the eye of law to say that the learned Tribunal has committed any error while awarding the claim in favour of respondent No.1. In this view of the matter, this appeal fails and is hereby dismissed. (Gopal Krishan Vyas) J. Ojha, a.