Allahabad High Court
National Insurance Co. Ltd. vs Matadin Ahirwar And 6 Ors. on 29 January, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- FIRST APPEAL FROM ORDER No. - 4002 of 2017 Appellant :- National Insurance Co. Ltd. Respondent :- Matadin Ahirwar And 6 Ors. Counsel for Appellant :- S.B.L. Gour Counsel for Respondent :- Gaurav Singh Tomar,Subhash Gosain Hon'ble Vivek Agarwal,J.
Heard Sri S.B.L. Gour, learned counsel for the appellant.
This appeal under provisions of Section 173 of the Motor Vehicles Act has been filed by the National Insurance Company being aggrieved by the award dated 26.03.2009 passed by the learned Additional Motor Accident Claims Tribunal/Additional District Judge/Special Judge, SC/ST Act, Jalaun at Orai in M.A.C.P. No.146 of 2007 so also against the order dated 27.09.2013 rejecting the review application.
Contention of the learned counsel for the Insurance Company is that before the Claims Tribunal an application was filed as is enclosed with the present appeal as Annexure-1 to the effect that the driving license of the driver of the offending vehicle is forged and bogus and, therefore, the original record be called for from the Office of R.T.O. This application does not bear any date and signed by one Ashok Varshney, Advocate was rejected by the learned Claims Tribunal vide order dated 24.03.2009 clearly mentioning that respondent no.4 i.e. the Insurance Company before the Tribunal was granted several opportunities and it had sufficient time to get the driving license verified from the Authority Competent to issue such license but it has not done so. Evidence of contesting parties is over. Case was listed twice for arguments and again when the case is fixed for argument, an application has been filed to delay the matter. It is held that there is no justification to call for the record from the Office of R.T.O., Lucknow and case was fixed for 26.03.2009 for passing of the award after hearing arguments of rival parties.
Learned counsel for the appellant submits that they had received a communication dated 25.03.2009 from the Investigator, Pramod Kumar that D.L. No.P1168/lko/06 dated 22.01.2006 in the name of Pramod Kumar son of Sri Ram as per Office record has not been issued by the said Office. This communication of the Investigator to the Senior Divisional Manager of the National Insurance Company, D.O. one Hazratganj is enclosed alongwith this appeal as Annexure-3.
Placing reliance on such communication from the Investigator, it is submitted that the Claims Tribunal erred in allowing the claim.
After hearing the arguments advanced by the learned counsel for the appellant, it is apparent that the grievance of the appellant is that as the driver of the insured vehicle was not having valid driving license, therefore, records from the R.T.O. Office, Lucknow should have been called for. It is also submitted that review petition has been arbitrarily dismissed by the learned Claims Tribunal without assigning any reasons.
As far as review petition is concerned referring to Rule 221 of Uttar Pradesh Motor Vehicles Rules, 1998, learned Claims Tribunal has held that provisions contained in Code of Civil Procedure have limited application from Order 5 Rule 9 to 13 and 15 to 30, Order 9, Order 13, Rule 3 to 10, Order 16, Rule 2 to 21 and order 17 so also order 23 from Rule 1 to 3.
Referring to the judgment of this High Court in case of New India Insurance Company Limited Vs. Baljeet Singh as reported in AWC 2012(6) 6380 holding that Tribunal has no powers to review dismissed the review.
This judgment rejecting the review petition does not call for any interference and is in consonance with the law laid down by this High Court.
As far as merits of the case are concerned, it is not the case of the appellant that they had produced the D.L. verification report of their Investigator, Pramod Kumar before the learned Tribunal before passing of the award on 26.03.2009.
On the contrary, there is a reference of D.O.ACCD- 09.02.2007 available on Annexure-3 meaning thereby that Investigator took more than two years to verify the license and that too did not perform the required work in terms of the law laid down in case of Oriental Insurance Company Ltd. Vs. Smt. Poonam Kesharwani and others decided on 04.12.2008 as reported in 2009(3) ALJ 613 (DB).
Same view has been taken by a Co-ordinate Bench of this Court in F.A.F.O. No.1082 of 1995 (M/S The Oriental Insurance Co. Ltd. Vs. Anwarul Hasan Kari And Ors.) decided on 01.11.2019.
The ratio of the law laid down in case of Poonam Kesarwani (supra) is that driving licence is issued under Chapter II of the Act. Section 26 of the Motor Vehicles Act makes it mandatory for the State of Government to maintain a register known as State Register of driving license. It has been held that the State Register of driving license is a public document as defined by Section 74 of the Evidence Act. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee.
If certified copy of the entries made in the public record is required to be issued on payment of fee in Form-54 as laid down by Rule 150(2) of the Central Motor Vehicles Rules, 1989. It is held that Form 54 being the certified copy of a public document need not be proved by examining a witness but in the present case as was the case in the matter of Poonam Kesharwani (supra), appellants have not bothered to produce copy of any document in Form-54 to show that such Form was obtained and produced at any stage. Even at the appellate stage, Insurance Company had not taken pains to produce such Form-54 along with an appropriate application.
A perusal of Annexure-3 reveals that there are three enclosures mentioned in the Investigator's report but none of the enclosures have been produced along with the report of the Investigator.
In view of such facts, since information has not been furnished by the registering authority in Form-54 and it has not been provided by the Investigator or the Insurance Company, deposit of fee would not convert the latter into a certificate under Rule 150.
In the present case, Insurance Company has even not bothered to produce any letter issued by the Rivisional Transport Officer, Lucknow.
In view of such facts, the onus was on the Insurance Company to prove that the license was fake by examining a witness before the Tribunal.
Since the Insurance Company has failed to lead any evidence to prove the aforesaid letter by examining witnesses before the Tribunal, the Tribunal has rightly decided the claim and that does not call for any interference, therefore, appeal fails and is dismissed.
Parties to bear their own cost.
Order Date :- 29.1.2020 Ashutosh