Himachal Pradesh High Court
National Insurance Co. Ltd. vs Mast Ram And Ors. on 9 January, 2004
Equivalent citations: III(2004)ACC167, 2004ACJ1039
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. This appeal at the instance of insurance company is directed against the award dated 24.4.2003, passed by Motor Accidents Claims Tribunal (II), Solan. By means of the impugned award, learned Tribunal in M.A.C. Petition No. 13-S/2 of 1997, has awarded a sum of Rs. 1,20,000 in favour of respondent No. 1, claimant. This amount has been ordered to be deposited within 30 days, failing which appellant insurance company has been held liable to pay it with interest at the rate of 9 per cent per annum till realisation. While ordering payment of this amount by the appellant, right has been reserved to recover it from 'insurer', since driving licence of the driver relied upon by owner and driver was found to be fake.
2. At the time of hearing of this appeal, Mr. Ashwani Kumar Sharma, the learned counsel appearing for the appellant after placing reliance on sections 3, 9 and 10 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act'), as well as Rule 10 (5) of the H.P. Motor Vehicles Rules, 1999, submitted that the learned Tribunal below has fallen into error by holding appellant liable for payment of the award amount. According to him driver Sher Singh could not have held more than one licence and on record there are two licences. One purported to have been issued by the authority from Hyderabad, has been proved to be fake; whereas the other issued by the Registering and Licensing Authority, Suni Sub-Division, has been proved to be legal and valid driving licence. According to him, in the face of this position, appeal deserves to be allowed and the impugned award set aside.
3. Mr. Sharma also raised a plea based on the quantum of compensation. Record of the Tribunal shows that the permission under Section 170 of the Act was granted to the appellant to contest the claim of respondent No. 1. As such, he was heard on this aspect of the case as well.
4. All these pleas have been seriously contested and resisted by Mr. Bhupinder Gupta, learned senior counsel appearing for the owner, respondent No. 2, Mohali Cargo Movers. According to him, it is proved on record by cogent, reliable and trustworthy evidence that on the date of accident, driver Sher Singh had a valid driving licence as per law, whereunder he could drive the vehicle in question. Vehicle bearing registration No. PB 12-B 9790 laden with iron had caused damage to the property of Mast Ram, respondent No. 1. Accident was the result of rash and negligent driving of the vehicle in question on the part of its driver Sher Singh. This was the case set up by respondent No. 1.
5. Vehicle being insured with appellant under a valid policy was not disputed. On 19.6.1997, accident took place at about 8 p.m. at village Nagali, National Highway No. 22. As a result of the accident, vehicle dashed against the rooms-cum-shops of the house owner. Its lintel fell and building also developed cracks as a consequence of the accident.
6. Record of the learned Tribunal below was examined with the assistance of learned counsel appearing for the parties in this case. Claim of the owner of the vehicle was repudiated, when on verification of the copy of licence supplied by him to the appellant, it was found fake. Defence of the appellant during the course of the proceedings before the Tribunal below, as well as in this court, was based on this ground.
7. In this context, another fact that needs to be noted here is that the owner of the vehicle was examined. He wanted to produce licence issued by the authority from Suni Sub-Division, in favour of Sher Singh driver. This plea was contested and resisted by the appellant. In fact, order permitting the owner to place on record in proof, copy of licence was challenged in this court in Civil Revision No. 100 of 2001, but it was dismissed as interlocutory on 3.1.2003.
8. The plea urged on behalf of the insurance company regarding driver Sher Singh holding two driving licences is self-contradictory and mutually destructive. Reason being that the licence to enable a person like Sher Singh driver in this case, is required to be issued by an authority under the Act. Admittedly, the one purported to have been issued by the authority at Hyderabad was not under the Act and was found fake, not only by the surveyor but also on the basis of statement recorded at Hyderabad by the local Commissioner appointed by the Tribunal below. Thus, the licence purported to have been issued by the authority at Hyderabad for all purposes is void and non est. Therefore, to say that the driver was holding two licences, as noted above, is not correct. Once it is so held, then the only licence survives on the file is which was duly proved and it was even not disputed at the time of hearing that it is legal and valid, as also having been duly proved by the witness from the office of the Registering and Licensing Authority concerned. May be that owner of the vehicle had given copy of the licence on the basis of which own damage claim was repudiated by the insurance company. But this would not mean that the validity and legality of the proper licence as required under law, is also destroyed.
9. In this behalf, it may also be appropriate to note that it is not the case of the appellant that legal and valid licence did not authorise the driver to have driven the vehicle in question at the time of accident. Thus, to say that he was holding two driving licences is not correct. For all purposes, the licence issued by the Licensing Authority, Suni Sub-Division, is the only valid and legal authority whereunder Sher Singh driver, could have driven the vehicle in question. On a reading of the provisions of law relied upon by Mr. Sharma, it is manifestly clear that it speaks of driving licence. This presupposes that it has to be a licence under the provisions of the Act and not something that is not envisaged under the Act. Suffice it to say in this behalf that some other liability under law might have been incurred by the person holding the licence allegedly issued by the authority of Hyderabad that is proved to be fake in this case. But in the face of the licence proved to be issued as per law, case of respondent No. 1 cannot be rejected.
10. Now coming to the plea based on quantum of compensation assessed by the learned Tribunal below. Respondent No. 1 Mast Ram whose building was damaged had examined PW 5 in addition to his own statement. PW 5 is one M.S. Bisht, Junior Engineer. Per him, his report prepared after the spot inspection which he had carried out in the last week of June, 1997 was Exh. PW 5/A. Estimate of damage caused to the property was assessed at Rs. 1,20,000. The detailed measurements carried out by him are Exh. PW 5/B. Both these documents have remained unshaken and have not been controverted by any legally acceptable evidence.
11. On the other hand, Arun Ahluwalia has appeared as RW 1. According to him, the loss was got assessed by the appellant from one Vinod Bhardwaj, loss assessor. This assessor has not been produced so as to support his version. Thus, his opinion as contained in Exh. RW 1/G cannot be accepted. It hardly needs to be said that opinion of an expert, like Vinod Bhardwaj, loss assessor was required to be proved in accordance with the provisions of Section 45 of Indian Evidence Act, 1872. Therefore, this report is of no avail to the appellant. A plea urged in this behalf to read Exh. RW 1/G in evidence was also raised by Mr. Sharma. Per him, this document has been exhibited which requires to be read in evidence. Merely because a document has been exhibited does not dispense with its proof. Reference in this behalf can be made to a decision of the Supreme Court in Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865. Nothing to the contrary was brought to my notice on behalf of appellant. Therefore, no benefit can be derived by the appellant from Exh. RW 1/G. Similarly, merely because the claim has been rejected on the basis of a licence which was found to be fake, will not be a ground to exonerate the appellant of its liability for the payment of compensation in this case, particularly when Sher Singh driver of the vehicle at the time of accident has been held to be possessing legal and valid driving licence authorising him to drive the vehicle in question.
12. Learned Tribunal below completely overlooked the provisions of the Act, as also the valid driving licence.
13. Because of what has been held in this judgment, it is felt necessary to exercise power vested in this court under Order 41, Rule 33 of the Civil Procedure Code to set aside the findings in the operative portion of the award requiring the appellant to pay the amount and then to recover it from the 'insurer' (it should have been 'insured'?). This is a direction in the impugned award that needs to be set aside. On this aspect, Mr. Sharma had argued that there is no cross-appeal by the owner of the vehicle. To meet such a situation, legislature had enacted Order 41, Rule 33 in the Civil Procedure Code even in cases where an appeal is not filed by a party, like the owner in the present appeal. As such, this plea cannot be accepted.
14. Mr. Sharma has urged that if all his pleas fail, in such a situation, Rs. 50,000 incurred as expense, firstly, for getting verified the genuineness of driving licence from a surveyor at Hyderabad and thereafter when local Commissioner was appointed for examination of the witness at Hyderabad, be got reimbursed to his client. In fact, there is order on the file of learned Tribunal below, when this plea was urged and it was observed that this matter will be dealt with at the time of final hearing. Impugned award is silent in that behalf. It is correct on that basis that a copy of the licence (found to be fake) furnished by the owner, substantial expense had to be incurred by the appellant. Without saying anything in this behalf, lest it prejudices either of the parties, liberty is reserved to the appellant to take such recourse as is permissible under law for recovery of this amount by approaching the appropriate court. Mr. Gupta, learned senior counsel appearing for the owner pointed out that this plea has not been raised as a ground of appeal, so appellant be not heard on it.
15. Since this question is not being gone into by this court, therefore, parties will be free to put up their case if appellant takes such an action. In such a situation, it will be determined strictly in accordance with law without being influenced either by what is said by the Tribunal in the impugned award or in this judgment by this court. Not only this, but the appellant in addition to any civil action, will also be free to initiate any other action including criminal action under the criminal law for holding a licence that has been proved to be fake in this case, of course, as per law, if so advised.
16. No other point is urged.
17. In view of the aforesaid discussion and subject to what has been said above, while upholding the impugned award, it is held that the appellant will not be entitled to recover the same from the insured. To this extent, impugned award is modified.
18. This appeal has been finally heard and disposed of, at the joint request of the learned counsel for the parties as also keeping in view the short controversy involved in it. All pending applications are accordingly disposed of. Costs on the parties.