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Delhi District Court

Shri Tarun Bhardwaj vs M/S. Icici Lombard General Insurance ... on 28 January, 2014

         IN THE COURT OF SHRI ARUN BHARDWAJ
 PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS TRIBUNAL­II, 
              DWARKA COURTS, NEW DELHI


MACT No. 45/12/08


IN THE MATTER OF : 

          Shri Tarun Bhardwaj,
          S/o Shri Krishan,
          R/o Village & P.O. Samalkha,
          Near IGI Airport, 
          New Delhi - 110 035.
                                                                                                         ... Claimant

                                                         Versus

     1. M/s. ICICI Lombard General Insurance Co. Ltd.,     (Insurer)
        ICICI Bank Towers, 
        Bandra Kurla Complex,
        Mumbai - 400 051.  

     2. Shri Om Prakash,       (Owner)
        (Since deceased)
        S/o Shri Hari Singh 
        Resident of Village Ullawas, 
        P.O. Kadarpur, Gurgaon,  
        Haryana­120 001

     3. Shri Resham Khan,  (Driver)
        (Since deceased)
        S/o Shri Rujdar, 
        Through his legal heir
        Shri Rujdar,      (Father)
        R/o Village Nawabgarh, P.S. Nooh, 
        District Mewat, Haryana. 
                                                                                                  ... Respondents


MACT No. 45/12/08                Shri  Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors.         Page 1 of 26
 FILED ON     :                           19.07.2008
RESERVED ON  :                           25.01.2014
DECIDED ON :                             28.01.2014


J U D G M E N T :

­

1. This claim petition is filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.

2. Respondent No. 1 is the Insurer, Respondent No. 2 is the Owner and Respondent No. 3 is the Driver of the offending vehicle.

3. It is stated in the claim petition that on 25.01.2008, at about 12.30 hours, claimant was going from his house to Shahpur on his Motorcycle bearing Registration No. HR­30D­4799 (wrongly mentioned in Claim Petition as HR­55A­4596). When he reached at Subhash Chowk, Gurgaon near Hill Stone Hotel then all of a sudden, a Truck Dumper bearing No. HR­55A­4596 came at a fast speed, driven by its driver in a rash and negligent manner and hit the motorcycle of the claimant with a great force. As a result of this, claimant fell down on the road and received fracture on left leg and other grievous injuries all over his body.

4. Claimant has stated that he was removed to Pushpanjali Hospital for treatment.

5. Claimant has stated that he was 28 years old at the time of accident and was doing a private job earning Rs.10,000/­ per month.

6. He has stated that FIR No. 31/08 is registered under Section 279/338 of IPC at Police Station Sadar, Gurgaon against the MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 2 of 26 driver of the offending vehicle.

7. Claimant has claimed a compensation of Rs.15 lakhs with interest @ 18% per annum from the date of filing of the claim petition till its realization.

8. Before Respondent No. 3 (the driver of the offending vehicle) could be served, he expired. His legal heir was served by way of publication and was proceeded ex parte.

9. Respondent No. 2 was also proceeded ex parte. (During pendency of the claim petition, Respondent No. 2 had also expired).

10. Only Insurance Company filed its written statement and it took a preliminary objection that in case if the driver was not holding a valid and effective driving license to drive the alleged vehicle with authentic necessary endorsement authorizing him to drive the Truck then owner himself will be liable to pay the compensation. This plea is reproduced as under: ­ "Para 3. That without prejudiced to above said pleading it is submitted that at the time of alleged accident, if (emphasis supplied) the vehicle bearing No. HR­55A­4546 (Truck) was being used voluntarily, willingly and illegally in violation of Section 149 (2) (a) (ii) and driver was not holding a valid and effective driving license to drive the alleged vehicle with authentic necessary endorsement authorizing him to drive the Truck for that reason the owner himself is solely liable and answering respondent is not liable to pay any compensation to the petitioner and the claim petition is liable to be dismissed against the answering respondent."

11. It is also stated by the Insurance Company that MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 3 of 26 accident if any occurred solely due to the negligence of the claimant who violated the traffic rules and regulations and he was driving his motorcycle without a valid and effective driving license.

12. It is also stated by the Insurance Company that the claim petition is bad for non joinder and mis joinder of necessary parties as owner, insurer of Motorcycle of the claimant have not been impleaded as party respondents.

13. Insurance Company also stated that it be given leave to amend the Written Statement as and when new facts are brought into notice of answering respondents. This plea is as under:­ "Para 8. That without prejudiced to the above proceedings, the answering respondent crave leave of this Hon'ble Tribunal to amend the written statement as and when the new facts are brought into the notice of the answering respondent."

14. The factum of insurance of the insured vehicle on the date of accident was denied stating that policy was cancelled before the date of accident. However, rest of the contents of claim petition were denied.

15. To decide the compensation payable to the claimant, following issues were framed: ­

1. Whether, petitioner Tarun Bhardwaj has sustained injuries on his person in an accident which took place on 25.01.2008 caused due to negligent driving of the vehicle bearing registration number HR­55/A­4596 being driven in a negligent manner by respondent no. 3 Resham Khan, owned by respondent no. 2 MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 4 of 26 Shri Om Prakash and insured with respondent no. 1 ICICI Lombard General Insurance Co.?

... OPP.

2. In case, issue no. 1 is decided in affirmative then to what amount of compensation, petitioner is entitled to and from whom?

... OPP.

3. Relief.

16. Claimant entered in the witness box as PW­1 and stated almost similar facts in his evidence by way of affidavit as were already stated by him in the claim petition vis­a­vis sequence of events leading to the accident as well as for awarding compensation in his favour. He exhibited as Ex. PW1/1­36 various documents relied upon by him in support of his claim petition. These documents are receipts for payments given to Pushpanjali Hospital, Indian Spinal Injuries Centre etc.

17. On the directions of this Tribunal, he also filed treatment record of Indian Spinal Injuries Centre, Discharge Summary of Pushpanjali Hospital as well as Discharge Summary of Indian Spinal Injuries Centre.

18. In cross­examination, claimant denied a suggestion that he was not employed anywhere at the time of accident or salary certificate given to him by Saral Remeadies is a fabricated one. Other suggestions contrary to his case were also denied by him.

19. On behalf of Insurance Company, Ms. Sunanda Nimisha, Manager (Legal) of the Insurance Company entered in the witness box as R1W1.

20. She deposed that on the instructions of her MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 5 of 26 company, a notice was issued under Order 12 Rule 8 of CPC calling upon the driver and the owner of the offending vehicle to produce original certificate­cum­insurance policy in respect of vehicle in question relevant on alleged date of accident, driving license of the driver in original, valid and effective on the date of alleged accident for driving vehicle in question with a verification report from Issuing Authority, Ambala covering the date of accident and class of vehicle, registration certificate, permit valid and effective covering the place, route, date and time of alleged accident with its verification report from the Issuing Authority.

21. She proved policy issued by the Insurance Company as Ex. R1W1/A, postal receipts as per which these notices were sent as Ex. R1W1/C and notice under Order 12 Rule 8 of CPC was proved as Ex. R1W1/B.

22. She further stated that the Insurance Company had appointed an Investigator for verification of driving license of Respondent No. 3. Application for verification of driving license was proved as Ex. R1W1/D and requisite endorsement of the licensing authority, Ambala on the said application was proved as Ex. R1W1/E.

23. She stated that the driving license as per report of Licensing Authority, Ambala was not valid as it was valid from 09.12.2004 till 04.12.2007 only whereas the date of accident is 25.01.2008.

24. She stated that as the offending vehicle was being driven by Respondent No. 3 with permission of Respondent No. 2 without a valid driving license and in violation of terms of the MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 6 of 26 policy, Insurance Company is not liable to compensate the claimant.

25. She further stated that neither the insured had provided a valid permit with respect to the offending vehicle nor the same was available with criminal proceedings record.

26. No other witness was examined by any other party.

27. On the basis of pleadings of parties, evidence on record and arguments addressed, issue­wise findings are as under:­ ISSUE NO. 1: ­

28. Burden of proving this issue is on the claimant.

29. For succeeding in a claim petition filed under Section 166 of the Motor Vehicles Act, it is for the claimant to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.

30. This is sine qua non for getting the relief.

31. Claimant is himself an eye witness to the accident. He has stated that the offending vehicle bearing No. HR­55A­4596 being driven by Respondent No. 3 in a rash and negligent manner had caused the accident resulting in grievous injuries to him.

32. Respondent No. 3 had died during pendency of this Claim Petition. His LR was proceeded ex parte.

33. Neither claimant was cross­examined by LR of Respondent No. 3 nor his LR filed any written statement nor he entered in the witness box to prove innocence of the deceased driver.

34. Claimant has filed a copy of charge sheet filed by MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 7 of 26 the Investigating Officer in the Court of Ld. ACJM, Gurgaon after completion of investigation against Respondent No. 3 under Section 279/338 of IPC which is also prima facie suggestive of negligence of Respondent No. 3 in driving the vehicle in a rash and negligent manner.

35. Therefore, this issue is decided in favour of claimant and against the respondents.

ISSUE NO. 2: ­

36. In the case of Raj Kumar v. Ajay Kumar & Anr., MANU/SC/1018/2010, Civil Appeal No. 8981/2010 decided on 18.10.2010, following principles were laid down by the Hon'ble Supreme Court for determining compensation payable to road traffic accident victims:­ i. The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.

ii. Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii) (a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 8 of 26 account of permanent disability (iii) Future medical expenses. Non­pecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life (shortening of normal longevity).

iii. In routine personal injury cases compensation is awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and

(vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.

37. Initially, claimant was admitted in Pushpanjali Hospital from 25.01.2008 to 31.01.2008 as a case of Communited Fracture Leg Bone. He was again admitted in Indian Spinal Injuries Centre on 28.07.2008 and was discharged on 01.08.2008 as a case of Non Union Left Tibia and Fibula with limited Dorsiflexion of Ankle with Clawing Toes. He had undergone closed Reamed Interlocking Nailing with bone Grafting of Fracture Site (from ASIS) and Percutaneous Lengthening of Tendenoachilles and manually correction of Claw Toes was done under Spinal Anesthesia on 29.07.2008. Drain was removed on 31.07.2008 and he was discharged on 01.08.2008.

38. Therefore, for Pain and Suffering, claimant is awarded a compensation of Rs. 35,000/­.

39. Claimant has stated that he spent Rs. 13,848/­ on his medical treatment. However, bills worth Rs. 6,000/­ only are on record.

40. Therefore, claimant is awarded a compensation of Rs. 6,000/­ towards Cost of Treatment.

41. Additionally, claimant is awarded a compensation of Rs. 10,000/­ for Special Diet and Rs. 10,000/­ for Conveyance Charges.

42. With the kind of injuries suffered by the claimant and considering that from the date of accident i.e. 25.01.2008 till 01.08.2008 he was under active treatment in the hospitals, it can be assumed safely that the claimant would have needed the help of an attendant for at least for a period of 6 months.

43. It is well settled that a victim of road traffic accident has to be compensated in terms of money even if gratuitous services are rendered by his family members.

44. In Delhi Transport Corporation and Anr. v. Lalita: AIR 1981 Delhi 558, Hon'ble High Court of Delhi has held that there cannot be any deduction if domestic help is obtained from a family member. The Hon'ble High Court had observed as under: ­ "........... A wrong doer cannot take advantage of this 'domestic element'. If the mother renders service to her, instead of a nurse, it is right and just that she should recover compensation for the value of the services that the mother has rendered to her. Mother's services were necessitated by the wrong doing and the injured should be compensated for it. (Cunnigharn v. Harrison 3 All E.R. 463) The services of a wife and mother are worth more than MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 10 of 26 those of a house­keeper because she is in constant attendance and does many more things than a house­keeper. (Regan v. Williamson (1976) 2 All E.R.

241)."

45. This judgment was again quoted with approval by the Hon'ble High Court of Delhi in the case of Narayan Bahadur v. Sumeet Gupta and Anr., MAC APP. No. 762/11 dated 04.07.12.

46. As the accident is of year, 2008, therefore, on a lump sum basis, claimant is awarded a compensation Rs. 15,000/­ (i.e. Rs. 2,500/­ x 6) for Attendant's Charges.

47. Similarly, claimant would be entitled to loss of wages at least for a period of 6 months. In absence of evidence of income or educational qualifications of the claimant, reliance is placed on minimum wages payable to an unskilled workman which on the date of accident were Rs. 3,633/­ per month.

48. Therefore, claimant is awarded a compensation of Rs. 21,798/ (i.e. Rs. 3,633/­ x 6 ) for Loss of Wages.

49. Resultantly, total compensation payable to the claimant will be Rs.97,798/­ which shall be given with interest @ 7.5% per annum from the date of filing of this claim petition which is 19.07.2008 till its realization.

50. Next question is which of the respondents is liable to pay this compensation to the claimants?

51. The defence of Insurance Company is that the driving license of Respondent No. 3 had expired on the date of accident. To prove this defence, they are relying on Ex. R1W1/D which is a noting given by Licensing Authority­cum­Secretary, RTA, Ambala, Haryana. This noting is given on an application of the MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 11 of 26 Advocate of Insurance Company addressed to the Licensing Authority, Ambala requesting for verification about genuineness or otherwise of the license of the driver.

52. This noting of Licensing Authority­cum­Secretary, RTA, Ambala, Haryana is sought to be proved by the evidence of Ms. Sunanda Nimisha, Manager (Legal), R1W1.

53. To prove that the driver was not having a driving license on the date of accident, Insurance Company is also relying on a notice addressed to the owner and the driver of the offending vehicle calling upon them to produce a valid and effective driving license covering the date of accident.

54. There is no specific pleading of the insurance company that the driver was not having a driving license on the date of accident. It has merely stated that if the driver was not holding a valid driving license, the insurer will not be liable to indemnify the insured. Such a pleading is not a pleading of a statutory defence (See, Oriental Insurance Co. Ltd. v. B.S Bhargava, a judgment of Hon'ble High Court of Delhi in MAC APP. No. 127/10 dated 10.08.12).

55. Even after reserving its rights to amend its written statement, if in future any new fact came in the knowledge of the insurance company, no amendment was sought in written statement to take a defence that the driver had no driving license on the date of accident.

56. In absence of such a pleading, no amount of evidence can help the insurance company for getting recovery rights against the insured.

57. Moreover, the burden to prove that the insured has willfully, deliberately and consciously committed a breach of terms and conditions of policy is on the insurer.

58. In the case of Bajaj Allianze General Ins. Co. Ltd. v. Bhikhari Yadav, MAC APP. No. 727/11 dated 03.01.12 which is a judgment of Hon'ble High Court of Delhi, it is held that 'it is settled law that in order to avoid the liability the onus is on the insurance company to prove that there is breach of the policy conditions by the insured. The breach committed by the insured must be willful, e.g. where the insured entrusts a vehicle to a duly licensed driver and it is unlawfully driven by any other person not holding a valid and effective driving license, it cannot be said that the owner is guilty of willful breach.

59. Insurer has not examined any witness from the Licensing Authority, Ambala to prove that after expiry of the driving license on 04.12.2007, it was not got renewed by the driver.

60. Insurance Company should have summoned a witness from Licensing Authority, Ambala to prove this fact. Though the Insurance Company took steps to call a witness from Licensing Authority, Ambala but they were not taken to their logical end. It appears that those notices were never served upon the Licensing Authority.

61. Insurance Company has not examined the Investigator who had taken the report from the Licensing Authority­ cum­Secretary, RTA, Ambala, Haryana.

62. There is no evidence of any person who had seen signatures of said Licensing Authority to say that signatures at Ex.

R1W1/E are of the Licensing Authority, Ambala.

63. In the case of Bhikhari Yadav (supra) the question whether a certificate given by a Licensing Authority certifying that license is fake can be treated as a public document was answered as under:­ "13. Section 79 of the Indian Evidence Act, 1872 (the Act of 1872) is extracted hereunder:­

79. Presumption as to genuineness of certified copies ­ The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by any officer [in the State of Jammu and Kashmir]who is duly authorized there to by the Central Government]:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper."

14. A bare reading of Section 79 of the Act of 1872 shows that a rebuttable presumption about genuineness of a certified copy or a certificate can be drawn subject to certain conditions as given in the Section. Firstly, the certified copy or the certificate must be declared by law to be admissible as evidence of a particular fact and such document i.e. the certificate (in this case) must be substantially in the form and purports to be MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 14 of 26 executed in the manner as directed by law in that behalf. In this case, neither of these two conditions has been satisfied. Otherwise any document including a public document has to be proved as provided under Section 67 of the Act of 1872.

"15. The question of proof of a Sanction Order signed by the Sanctioning Authority i.e. Secretary (Medical) Delhi Administration came up before this Court in State (Delhi Administration) v. Brij Mohan, 27 (1985) DLT 322 where it was held as under:­ "(8) Section 61 of the Evidence Act lays down that the contents of a document may be proved either by primary or by secondary evidence. Section 62 thereof defines primary evidence as meaning the document itself produced for the inspection of the court. In other words, the primary documentary evidence of a transaction (evidenced by writing) is the document itself which should be produced in original to prove the terms of the contract/ transaction, if it exists and is obtainable. Since the original sanction was admittedly placed on record by the prosecution, the requirements of this provision stood satisfied and the question of any secondary evidence for proving the contents of the sanction as such did not arise. Primary evidence in the context of oral evidence, however, means an oral account of the original evidence i.e. of a person who saw what happened and gives an account of it recorded by the court. That question does not appear to have arisen in the instant case because the matter was still at the stage of proof of the consent accorded by the Secretary (Medical).

Since Sections 61 to 66 of the Evidence Act deal with the mode of proving the contents of the documents, either by primary evidence or by secondary evidence, I need not dwell upon the same in view of the original document having been placed on the record.

(9) Then comes the most important question viz. the genuineness of a document produced in evidence i.e. is a document what it purports to be and this is dealt with in Sections 67 to 73 of the Evidence Act. Section 67 refers to documents other than documents required by law to be attested. It simply requires that the signature of the person alleged to have signed a document (i.e. the executant) must be proved by evidence that the signature purporting to that of the executant is in his handwriting. Further it requires that if the body of the document purports to be in the hand­ writing of someone, it must be proved to be in the hand­writing of that person. However, Section 67 does not in terms prescribe any particular mode of proof and any recognised mode of proof which satisfies the Judge will do. Thus, the execution/ authorship of a document may be proved by direct evidence i e. by the writer or a person who saw the document written and signed or by circumstantial evidence which may be of various kinds, for example, by an expert or by the opinion of a non­expert who is acquainted with the hand­writing in any of the ways mentioned in Explanation to Section 47 or even by comparison etc. (See Sections 45, 47, 73 & 90 of the Evidence Act)......"

"16. The question of proof of a public document came up before Bombay High Court in C.H. Shah v. S.S. Malpathak & Ors., AIR 1973 Bom. 14, where it was held as under:­ "4....... In all cases of secondary evidence under Section 65 read with Section 63 of the Evidence Act when a copy or an oral account of a document is admitted as secondary evidence, the execution of the original is not required to be proved but if the original itself is sought to be tendered it must be duly proved and there is no reason for applying a different rule to public MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 16 of 26 documents. Secondly, in the case of a certified copy, before a presumption of its genuineness can be raised under Section 79, as laid down by the Supreme Court in Bhinka's case already referred to above it must be shown that the certified copy was executed substantially in the form and in the manner provided by law. There would, therefore, be a check or safeguard in so far as the officer certifying it in the manner required by law would have to satisfy himself in regard to the authenticity of the original and in regard to the accuracy of the copy which he certifies to be a true copy thereof. On the other hand if the original of a public document is to be admitted in evidence without proof of its genuineness, there would be no check whatever either by way of scrutiny or examination of that document by an officer or by the Court. The third and perhaps the most important reason, for not accepting Mr.Shah's argument on the point which I am now considering is that neither Section 67 nor Section 68 of the Evidence Act which lay down that the signature and the handwriting on a document must be duly proved do not make any exception in the case of public documents. In view of the provisions of the said section all documents whatever be their nature must be therefore be proved in the manner provided by Section 45, 47 or 73 of the Evidence Act........

5. The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., AIR 1959 Bom. 414 that Section 114 of the Evidence MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 17 of 26 Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority AIR 1964 SC 538, but in the judgment of the majority the Supreme Court has not referred to the point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Sections 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense, cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence, it must be proved in the manner required by law....."

"17. Turning to the case in hand, the Appellant relies on a certificate dated 22.09.2009. It is not the Appellant's case that any form is prescribed for issuance of such certificate. In any case, the contents of the certificate can be presumed to be genuine it has to be proved that it is signed by the District Transport Officer, Gawahati. That having not been done, the certificate was not of any value and the same was not rightly taken into consideration by the Tribunal. Since the Insurance Company failed to discharge the onus that the driving licence held by the First Respondent was fake, it cannot avoid liability on this ground. "

64. In the case of New India Assurance Co. Ltd. v. Geeta & Ors., MAC APP. No. 553/07 dated 23.12.11, the effect of a MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 18 of 26 letter written by Licensing Authority vis­a­vis genuineness of license was dealt with by the Hon'ble High Court as under:­ "11. As far as breach of condition of policy is concerned, Respondent No.4 Arvind Kumar driver did state that he obtained a licence through a tout in Jaunpur and that he was a resident of Azamgarh. Obtaining help of a middleman and grant of a licence by a Transport Authority from a place outside the residence of the driver by itself would not make the driving licence invalid. The onus was on the Insurance Company to establish that the driving licence was fake. Though, a letter dated 22.01.2007 purported to be written by the Transport Authority was sent to the Tribunal to the effect that the driving licence number A5635 was issued in the name of one Ashok Kumar Misra yet the letter was not proved and tested by cross­ examination. The evidence was closed by the Insurance Company on 31.1.2007. The Appellant Insurance Company failed to establish that the driving licence held by the driver was fake. ((National Insurance Company Limited v. Swaran Singh 2004 (3) SCC 297). "

65. Therefore, in the absence of evidence of any witness from Licensing Authority, Ambala, it is not proved that the driver did not get his license renewed after its expiry on 04.12.2007.

66. Insurance Company is also relying on a notice served upon the driver and the owner of the offending vehicle under Order 12 Rule 8 of CPC to argue that in spite of service of such a notice, no valid and effective driving license was produced on their behalf which shows that the driver had no license on the date of accident.

67. As per Order 12 Rule 8 of CPC, an affidavit of the pleader, or his clerk, of the service of any notice to produce, and of MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 19 of 26 the time when it was served upon the driver and the owner of the vehicle also is to be filed on record alongwith copy of such a notice. In this case, no such affidavit is filed by the Insurance Company. Therefore, there is no sufficient evidence of the service of the notice or of the time when it was served upon driver and the owner.

68. Moreover, notice Ex. R1W1/B was sent on 06.08.2011 whereas reports had come on the record that the driver and the owner of the vehicle have died. It was noted on 20.04.2010 that the driver had died and it was noted on 08.02.2011 that the owner had also died. Still on 06.08.2011, notices were sent to Shri Resham Khan, the driver and Shri Om Prakash, the owner when they had already died by then. Therefore, nothing could be expected by serving such notices to addressees who were no more.

69. On behalf of the Insurance Company, a number of citations are cited for seeking exoneration / recovery rights against the driver and the owner of the offending vehicle.

70. First judgment cited on behalf of the Insurance Company is Ram Babu Tiwari Vs. United India Insurance Co. Ltd. and Ors. which is Civil Appeal No. 4749/08 decided on 01.08.2008.

71. In this case, appellant had approached the Hon'ble Supreme Court of India as in the impugned judgment it was held that the Insurance Company was not liable to indemnify the insured. Insurance Company had taken a defence before the Claims Tribunal that the driver of the offending vehicle was not having any valid or effective driving license to drive the vehicle on the date of accident. The Claims Tribunal had held that the driver had a valid license with effect from 11.02.1990 till 10.02.1993 and MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 20 of 26 07.02.1996 to 07.02.1999. The date of accident was 27.01.1996. Still, the Claims Tribunal had fastened liability on the Insurance Company. As noted above, the Hon'ble High Court of Madhya Pradesh in appeal of insurer held that the Claims Tribunal had committed an error holding that insurance company is liable to indemnify the insured.

72. The Hon'ble Supreme Court while dismissing the appeal held that as it was proved that on the date of accident, the driver was not having any license as he had failed to renew the same after it had lapsed, the insurer cannot be saddled with any liability.

73. In the present case in hand, the license according to the Insurance Company was valid till 04.12.2007. The date of accident is 25.01.2008. Whether the driver had renewed the license on the date of accident or not, is not proved by the Insurance Company by summoning a witness from Licensing Authority, Ambala.

74. Filing on record a note of said Licensing Authority, on an application of an Investigator of the Insurance Company that the license was not renewed after 04.12.2007 is not discharge of onus by the Insurance Company to prove that the license had lapsed on the date of accident.

75. Least the Insurance Company was expected to do was to call a witness from Licensing Authority, Ambala, to prove that the license was not renewed by the driver after it expired on 04.12.2007.

76. So much so, even the Investigator was also not examined to prove investigation report.

77. Nobody conversant with the signatures of Licensing Authority­cum­Secretary, RTA, Ambala, Haryana, was examined to prove endorsement Ex.R1W1/E.

78. Therefore, first judgment relied upon by the counsel for the Insurance Company is not helpful to the insurer for securing recovery rights against the owner because unlike the facts of the judgment relied upon, it was not proved that the license was not renewed after its expiry.

79. The second judgment relied upon by the counsel for Insurance Company is National Insurance Company Ltd. vs. Geeta Bhat and Ors, 2008, ACJ, 1498.

80. In this case, the Insurance Company had sought to examine the concerned clerk of the Motor Vehicles Department. Summons were served in the office of the transport authority. The transport authority did not depute any officer to produce the documents called for. Therefore, the Hon'ble Supreme Court had assumed that the driving license possessed by driver was a fake one.

81. Even this judgment is not applicable to the facts of this case because in the present case, Insurance Company has not served Licensing Authority, Ambala, to prove that the license had expired on the date of accident. Though steps were initiated to serve the witness but were not taken to logical conclusion by affecting service upon the witness. There is no service report to show that summons were served upon Licensing Authority, Ambala and it failed to depute a witness for deposing in this Tribunal.

82. Third judgment relied upon by counsel for insurance company is Oriental Insurance Co. Ltd. v. Mulayam Devi MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 22 of 26 & Ors., 1999 ACJ 727. However, in the light of judgment of the Hon'ble High Court of Delhi in the case of Bhikhari Yadav (supra), this judgment cannot be followed.

83. In the fourth judgment Malla Prakasa Rao v. Malla Janaki & Ors., I (2006) ACC 300 (S.C.) unlike present case it was not disputed that the license was not renewed on the date of accident. Therefore, this judgment is also not applicable to the facts of this case.

84. In fifth judgment cited on behalf of insurance company, New India Assurance Co. Ltd. v. Saloni Dargan, 1990 ACJ 127, it is held that strict rules of Evidence Act are not applicable to the proceedings before the Claims Tribunal. Insurance company cannot take cover of this judgment to wriggle out of its statutory duty to prove willful breach of terms of policy.

85. Lastly, insurance company has relied on National Insurance Co. Ltd. v. Vidyadhar Mahariwala & Ors., 2008 ACJ 2860. In this case, there was no driving license on the date of accident as it had expired. Therefore, recovery rights were given to the insurance company. There is absolutely no dispute with this proposition of law but the difficulty in the present case is that the insurance company has not proved by summoning a witness from Licensing Authority, Ambala that the driving license was not renewed by the driver on the date of accident.

86. Though there is no argument addressed on behalf of Insurance Company regarding permit of the vehicle but in the light of observations of the Hon'ble High Court of Delhi in the case of Bhikhari Yadav (Supra), no relief can be given to the Insurance MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 23 of 26 Company as it has not examined any witness from the Office of Transport Authority to prove that on the date of accident, the vehicle was being plied on the road without permit. The observations of the Hon'ble High Court in the case of Bhikhari Yadav are as under: ­ "Turning to the second limb of argument i.e. issuance of permit to ply vehicle no. DL­1G­2715 on the date of the accident, the appellant insurance company did not summon any record from the relevant office of the Delhi Transport Authority that on the date of the accident, the vehicle did not have any permit to ply on the road. Here again, the insurance company failed to discharge the onus that there was breach of the condition of policy in this regard'.

The Hon'ble High Court cited following para from the case of Kamala Mangalal Vayani v. NIA Co. :

2010 (12) SCC 99, which is as under:­ "The claimants are not expected to prove that the vehicle had a valid permit, nor prove that the owner of the vehicle did not commit breach of any of the terms of the policy. It is for the insurer who derives its liability under the policy, to establish that inspite of the comprehensive policy issued by it, it is not liable on account of the requirements of the policy not being fulfilled. It was open to the insurer to apply to the concerned Transport Authority for a certificate to show the date on which the permit was granted and that as on the date of the accident, the vehicle did not have a permit, and produce the same as evidence. It failed to do so. The High Court committed an error in expecting the claimants to prove that the vehicle possessed a valid permit."

87. Therefore, no relief can be given to the Insurance MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 24 of 26 Company for its arguments regarding non availability of driving license of the driver or permit of the vehicle on the date of accident.

88. Though there is a pleading of Insurance Company that insurance policy is denied as the same was cancelled before the date of accident but no evidence was adduced to show that the policy was cancelled before the date of accident.

89. Therefore, the compensation shall be deposited by the Insurance Company within 30 days from today under intimation to the claimant as well as to his counsel by Registered Post.

90. In case, even after passage of 90 days from today, the Insurance Company fails to deposit this compensation with proportionate interest, in that event, in the light of the judgment of the Hon'ble High Court of Delhi in the case of New India Assurance Company Limited Vs. Kashmiri Lal, 2007 ACJ 688, this compensation shall be recovered by attaching the bank account of the Insurance Company with a cost of Rs. 5,000/­.

91. Address of the counsel of the claimant for effecting service of notice of deposit of compensation is as under: ­ Ms. Kanta Chaudhary, Advocate, Ch. No. 283A, Patiala House Courts, New Delhi - 110 001.

Mobile No. 9811193806.

92. Nazir of this Court will also send intimation of deposit of compensation to the claimant as well as to his counsel.

93. Ahlmad will put up this file with report from Nazir regarding deposit of compensation again on 30.04.2014.

94. Copy of award be given dasti to all the parties.

95. File be consigned to the Record Room. Announced in the Open Court On the 28th day of January, 2014.

(ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENT CLAIMS TRIBUNAL­II DWARKA COURTS, NEW DELHI MACT No. 45/12/08 Shri Tarun Bhardwaj Vs. ICICI Lombard General Insurance Co. Ltd. & Ors. Page 26 of 26