Punjab-Haryana High Court
Surmukh Singh vs Nirdosh Sharma And Another on 7 February, 2014
Author: Harinder Singh Sidhu
Bench: Harinder Singh Sidhu
FAO No. 1634 of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 07.02.2014
1. FAO No. 1634 of 1997
Surmukh Singh
...Appellants
Versus
Nirdosh Sharma and another
...Respondents
2. FAO No. 1633 of 1997 Surmukh Singh ...Appellants Versus Ramesh Kumar Sharma and another ...Respondents CORAM: HON'BLE MR. JUSTICE HARINDER SINGH SIDHU Present: - Mr. J.S. Toor, Advocate For the appellant.
1. To be referred to the Reporters or not?
2. Whether the Judgment should be reported in the Digest? HARINDER SINGH SIDHU,J This order shall dispose of two appeals i.e. FAO Nos.1633 and 1634 of 1997 as these are directed against the common award dated 01.03.1997 passed by the Motor Accident Claims Tribunal Karnal (for brevity 'the Tribunal'). Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 2 However, the facts are being taken from FAO No. 1634 of 1997.
The appellant, who is the owner and driver of offending truck has filed this appeal against the award dated 01.03.1997 passed by the Tribunal. Vide this award, the appellant has been held liable to pay compensation to the injured-claimants and the Insurance Company has been absolved of liability.
The facts in brief are that on 31.08.1994 Ramesh Kumar and Nirdosh Kumar left for Gharaunda after offering prayer to Baba Peer on pucca pul, Karnal by their Scooter No. HNX-859 driven by Nirdosh Kumar with Ramesh Kumar on the pillion. When they reached a place near crossing of village Jhinwar Heri on G.T. Road, Karnal, a truck bearing registration No. PB-12-B-1245 struck against the Scooter from behind. The truck was being driven by the appellant. As a result of collision, the Scooter fell down and Nirdosh Kumar and Ramesh Kumar sustained injuries. Regarding the accident, criminal case bearing FIR No. 470 under Sections 279, 337 and 427 IPC was registered in Police Station Sadar Karnal on 31.08.1994 against the truck driver Surmukh Singh. Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 3 Two claim petitions were filed by both the injured. They were consolidated and heard together and disposed of by a common award on 01.03.1997. The Tribunal returned a finding that the accident had taken place on account of rash and negligent driving of truck by its driver Surmuksh Singh and the issue No. 5 was framed as under:
"Whether at the time of accident respondent No.1 was not holding a valid driving licence and the truck was being driven in violation of the terms and conditions of insurance policy? OPR"
Regarding this issue, the Insurance Company had taken objection that the driver Surmukh Singh, the appellant herein did not hold a valid driving licence to drive a truck.
Before the Tribunal, counsel for the appellant had placed on record one photocopy Mark 'X' of driving licence bearing No. 1059 issued by the Licensing Authority, Nahan in the year 1980-81 as renewed vide Sr. No. 444/83-84 on 13.06.1983 upto 12.06.1986 and then on some date upto 12.06.1989 and then on 29.06.1989 to 12.06.1992 by Licensing Authority, Rupnagar.
Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 4
In order to prove that the appellant did not possess any valid driving licence, the Insurance Company had examined RW-2 Satinder Thakur, Clerk of the Office of Licensing Authority, Nahan, who specifically stated that no driving licence No. 1059/80-81 was issued from that office in the name of anybody and entry No. 444/83-84, regarding renewal of driving licence was dated 4.12.1986 and showed the renewal of driving licence in the name of one Badhu Ram. From this, the Tribunal concluded that the original of Mark 'X' stands proved to be fictitious and forged document. Regarding other licence produced by the appellant at the time of his examination in the Court, the Tribunal held that this has been issued on 08.08.1995 by the Licensing Authority, Rupnagar and is valid upto 07.08.1998. This renewal is much after the accident.
In view of this evidence, the Tribunal concluded that at the time of accident, the truck was not driven by a person holding a valid driving licence. This issue was accordingly decided against the appellant and in favour of the Insurance Company.
Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 5
After going through the evidence regarding the amount spent on treatment and other expenses, the Tribunal held that Rs. 1 lac would be sufficient compensation for Nirdosh Kumar and Rs. 30,000/- as compensation for Ramesh Kumar. Since the appellant was found to be not holding a valid licence, the Insurance Company was absolved of its liability to pay compensation and the claimants were held entitled to claim compensation from the appellant along with the cost and interest awarded by it.
Being aggrieved of the award of the Tribunal, the appellant has filed the present appeal.
Counsel for the appellant has placed reliance of a Full Bench decision of this Court in the case of National Insurance Company Ltd. v. Smt. Santro Devi 1997(2) RCR (Civil) to contend that even though a forged driving licence, which may be validly renewed would not become a valid driving licence in accordance with the provisions of the Motor Vehicles Act but if the insured bona fide believing in the validity of the forged driving licence employs the holder of the fake driving licence renewed by the competent authority, it would not amount to violation of the conditions Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 6 of contract or the insurance policy. It has been sought to be contended relying on this authority that merely employing the driver with forged driving licence would not absolve of insurer of its liability. The relevant observations of the Full Bench are as under:
"68. In view of the observations made above, I answer the questions posed as under:
(1) A forged driving licence though may be validly renewed, would not become a valid driving licence or a duly issued driving licence in accordance with the Motor Vehicles Act.
(2) The insured bona fidely believing in the validity of a forged driving licence employing the holder of a fake driving licence renewed by a competent authority, would not amount to violation of the conditions of contract or of the Insurance policy. It would not be violating either conditions of indemnity or the Insurance policy or the contract or violation of any statutory provisions. Under these circumstances, merely employing a driver with a forged driving licence would not absolve the insurer of its liability.
(3) In the absence of measure of knowledge or intention to violate the terms of policy or the provision of the Act by the insured, the insurance company would not be discharged of its liability Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 7 from indemnifying the insurer or of its statutory liability to third party or its contractual liability to third party.
(4) The insurance company cannot refuse to meet its liability qua third party for any act or omission bona fidely or otherwise committed by the insured or its liability inasmuch as third party for whose benefit the insurance has been provided, is not a privity to any breach as being not in control of the act or conduct of the insured or its employee or insured. Thus, the insurance company cannot refuse to meet its liability qua third party.
(5) The insurer is duty bound and liable, statutorily as well as contractually to reimburse third party claim, for the tortuous act committed by the insured or his employee as well as the liability incurred by insured or his employee under the Motor Vehicles Act;
(6) The insurance company can neither refuse to indemnify nor is discharged from its liability to the insured or the claimants for an act of fraud committed by the third party qua the insured though it has a right to recover any loss suffered by it from the person, who committed the fraud or from any other authority as permissible either under tort or any other statute; and Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 8 (7) The insurance company would be entitled to recover the amount, which it has paid to the claimant from the insured or his driver or employee who has perpetuated fraud and the insurance company was made to reimburse third party who suffered loss because of the tortuous act of the insured or his employee. The insurer would not be left without remedy to reimburse itself. It would be at liberty to approach under tort in accordance with law for the failure of the State to discharge common duty care as well as the insured for not observing due care of an ordinary prudent person, expected from the insured as a duty towards the insurer as well as the person who has committed the fraud.
Remedy, as available to the insurer is not a decision by this Court while dealing with the question, rather it is left open to be determined as and when a question arises in the facts and circumstances of a particular case."
Relying on this, counsel for the appellant would contend that the Insurance Company could not have been absolved of its liability qua third party. The only rights which the Insurance Company would have would be the rights of recovery from the person who committed this fraud. Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh FAO No. 1634 of 1997 9
I am afraid that this judgment cannot come to the aid of the appellant. In this case, the appellant himself is the driver and owner so there is no question of the appellant having any bona fide belief in the validity of his own driving licence, which has been found to be fake. The appellant had not employed another person as a driver believing bona fide that his driving licence was genuine. In this background, it has to be held that the appellant who is the owner/driver was knowingly in breach of the terms of the policy as he drove the vehicle knowing fully well that his licence was fake.
In view of the position explained above, I find no merit in these appeals and the same are dismissed.
A photocopy of this judgment be placed on the file of connected case.
(HARINDER SINGH SIDHU) Judge February 07, 2014 Atul Atul Kumar Tripathi 2014.03.19 11:57 I attest to the accuracy and integrity of this document Chandigarh