IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.451 of 2003 BINDESHWARI PRASAD YADAV…Opp.Parrty—Appellant. Versus HEERA DEVI & ORS ……Applicants- respondents. ----------- For the appellant: Sri D.K.Sinha, Sr. Advocate. For the Insurance Company-Rests. No.4 and 5:Sri Ashok Priyadarshi, Advocate. For the claimants-Rests.No.1 to 3: Sri Ambrish Kumar Jha,Advocate. ORDER 8 29.6.2010 The owner who was Opposite Party no.1 in the claim case has filed this appeal against the Judgment and Award dated 27.9.2003 passed by the learned 9th Additional District Judge – cum – Motor Vehicle Accident Claim Tribunal, Munger, in Claim Case No.56 of 2000. 2. The claimants respondents filed the aforesaid claim case alleging that the Tata Maxi bearing No.BR 10A-4755 dashed Ranvir Singh on 20.2.2000 because of rash and negligent driving of the Maxi by the driver as a result of which said Ranvir Singh died on the spot. The F.I.R. was lodged by the Colleague of the deceased. It is said that the deceased was constable and his monthly income was Rs.3000/- and his age was 28 years. 3. The opposite party no.1, appellant Bindeshwar Yadav is the owner of the offending vehicle. O.P.no.2 is the driver. O.Ps. no.3 and 4 are the Insurance Company. It is stated that the offending vehicle was insured by the Oriental Insurance Company. The policy number was also mentioned which was valid from 23.7.1999 to 22.7.2000. 4. The owner of the vehicle, i.e., the appellant 2 appeared and filed contesting written statement and alleged that the vehicle in question was insured with the Oriental Insurance Company mentioning the policy number and further stated that the Insurance Company is liable to pay the compensation. It is also alleged by him that the driver, O.P. no.2 Shashidhar Prasad Yadav, had a valid driving license and there is no negligence on the part of the driver. 5. The Insurance Company appeared and filed contesting written statement taking various legal pleas and mainly contended that the Insurance Company is not aware as to whether the vehicle was insured or not. It is also stated that the quantum of compensation are imaginary and further stated that the deceased had no source of income. The Insurance Company further raised a question that in the Insurance policy a copy of which was provided by the owner, the vehicle number is BR 10A 4795 and, therefore, the offending vehicle is not insured. 6. On the basis of the pleadings the learned Tribunal framed issues and recorded evidences. By the impugned Judgment and Award the learned Tribunal came to the conclusion that in the policy the vehicle number is BR 1A – 4795 and, therefore, came to the conclusion that the offending vehicle was not insured. The learned Tribunal also found that the driving license has also not been filed in support of the fact that the opposite party no.2 was possessing valid driving license and, therefore, held that the entire responsibility goes on the shoulder of the appellant. 3 7. It appears that by terms of order dated 21st February, 2008 and 15.9.2008 the learned court below was directed to record additional evidence regarding identity of the vehicle and also regarding genuineness of the driving license for the reasons stated in those orders. The learned court below has recorded the evidence and has transmitted the same to this Court. The learned counsel for the appellant, i.e., the owner of the vehicle submitted that on the date of the occurrence the owner had only one vehicle, i.e., Tata Maxi BR 10A 4755 and the said vehicle was insured. The number of that vehicle was typed in the insurance policy by the Company but because of overlapping the digit 5 appears like digit 9 and, therefore, there is confusion in the number of the vehicle. But the Insurance Company has not denied the same specifically and, moreover, it may be a mistake in typing the vehicle number and for that mistake the appellant cannot be punished. The learned counsel further submitted that now the fact is that the driver was examined in the court below and he produced the certified copy of the original driving license which is not disputed by the Insurance Company. On these grounds the learned counsel for the appellant submitted that the Insurance Company is liable to pay the compensation to the claimants. 8. On the other hand, the learned counsel Sri. Ashok Priyadarshi, appearing on behalf of the Insurance Company submitted that the driving license has not been verified from the District Transport Office and, therefore, it cannot be relied upon. 4 9. From perusal of the lower court records it appears that according to the order passed by this Court earlier the learned court below recorded the evidence of Shashidhar Prasad Yadav. The said Shashidhar Prasad Yadav is the driver of the vehicle which was involved in the accident. He has clearly stated that on the date of accident he was driving Tata Maxi bearing registration No. BR 10A 4755 and on that date Bindeshwari Prasad Yadav had only one Tata Maxi bearing No.BR 10A 4755. He has further stated that the vehicle was insured with the Insurance Company. He has further stated that on the date of accident he had valid and legal driving license and had proved the driving license by producing the original driving license which is Ext.B. 10. From perusal of his crosexamination it appears that Insurance Company crosexamined only on the point of vehicle number and suggestion has been given to the effect that on the date of accident the owner had another vehicle. Except this suggestion no other evidence has been produced on behalf of the Insurance Company. The crosexamination was made on 16.3.2009. Still today nothing has been brought on record contrary to the evidence adduced by the appellant regarding the vehicle number and verification report of driving license. It further appears that regarding genuineness of driving license the Insurance Company has not at all disputed in the crosexamination. In the crosexamination made by the owner the driver specifically stated that the driving license was issued by the D.T.O., Munger. 5 11. It further appears that the Insurance Company never prayed before the learned court below to adduce evidence in rebuttal regarding the genuineness of the Insurance Policy. 12. It further appears that Ext.A has been filed which is investigation report from which it is clear that the vehicle number involved in the accident is BR 10A-4755. 13. It was the duty of the Insurance Company to have proved the fact that the driving license produced by the driver is not genuine. But no crosexamination on this point was made and that no evidence in rebuttal was produced. Therefore, the submission of the learned counsel that unless it is verified by the court from the D.T.O., Munger the license cannot be relied upon is not acceptable. It may be mentioned here that unless the genuineness of the document is disputed the court cannot suo mutu verify the same. It is specific case of the driver that the driving license is valid and legal issued by the D.T.O., Munger. Therefore, unless it is disputed it is not necessary to verify the same. Moreover, only by mere submission or denying the correctness will not suffice the matter. It is for the Insurance Company to adduce reliable evidence contrary to the said fact which has not been done here. I, therefore, find that the owner had one vehicle being Tata Maxi bearing No. BR 10A 4755 which is involved in the accident causing death of the deceased. I also find that the Driver had legal and valid license on the date of occurrence. 14. So far quantum is concerned it appears that the 6 court below relied upon the evidences of the witnesss. Admittedly the deceased was a constable. The Dy.S.P., Munger, gave a salary slip wherein total salary was shown to be Rs.4686/-. The learned court below deducted the allowances and came to the conclusion that the monthly income was Rs.3000/- and on the basis of that calculated the compensation. I find no illegality in the calculation of the compensation and, in my opinion, the compensation determined by the learned court below, i.e., Rs.4,39,000/- is just compensation. It appears that the Insurance Company had already paid Rs.50,000/- as interim compensation. In view of the above finding that the vehicle number is correct and that the driver had valid licence, the direction of the learned court below directing the owner to pay the compensation of Rs.3,89,000/- and further directing the Insurance Company to recover Rs.50,000/- from the owner is unsustainable in the eye of law. It is held that the Insurance Company is liable to pay the total compensation of Rs.4,39,000/-. Out of that interim compensation of Rs.50,000/- has already been paid and, therefore, the remaining compensation of Rs.3,89,000/- is to be paid by the Insurance Company as directed by the learned Tribunal. 15. In view of my above finding the impugned Judgment and Award are modified to the extent that the Insurance Company is liable to pay the compensation awarded by the learned court below and not the owner. 16. In the result, this appeal is allowed and the impugned Judgment and Award are modified to the extent that the 7 Oriental Insurance Company Ltd. is directed to pay the compensation awarded by the learned court below. 17. The statutory amount of Rs.25000/- deposited by the appellant before this Court be returned to the appellant. AnilKr.Sinha ( Mungeshwar Sahoo, J. )