Ashok Kumar Chourasiya Vs Pankaj Chourasiya and Others

@JUDGMENTTAG-ORDER

N.K. Mody, J.

Being aggrieved by the award dated 30.8.1997 passed in claim case No. 49/95, whereby an award of Rs. 50,000/- has been passed in favour of respondent No. 1, the present appeal is filed.

The short facts of the case are that the respondent No. 1 filed a claim petition for realization of Rs. 1,35,000/- on account of accident, which took place on 19.9.94 by the offending vehicle bearing registration No. MP 20-E/ 4195, which was insured with respondent No. 3.The claim petition was opposed. After framing of issues and recording of evidence, the learned tribunal awarded a sum of Rs. 50,000/- with interest and exonerated the respondent No. 3 on the ground that it is not proved that respondent No. 2 was the driver of the vehicle at the relevant time and also respondent No. 2 was not possessing a valid driving licence on the date of the accident.

Learned counsel for the appellant Shri A.K. Pathak submits that the learned tribunal has committed error in exonerating the Insurance Company - respondent No. 3 herein on the ground that it is not proved that offending vehicle was being driven by respondent No. 2 at the relevant time and from the evidence it is proved that respondent No. 2 was not having a valid driving licence at that time.

Learned counsel for the appellant submits that the learned tribunal in para 8 of the award has come to the conclusion that it is not proved that respondent No. 2 was driving the vehicle at the relevant time, then in para 9 of the award finding to the effect that respondent No. 2 was not having a valid licence at the relevant time is of no consequence.

Learned counsel further submits that from the documents, which have been produced and the evidence adduced by the Insurance Company, it is not proved that respondent No. 2 was not having a valid licence.

Learned counsel for the respondent submits that it is proved by the evidence of A.W.4, that respondent No. 2 was driving the vehicle at the relevant time. A.W.4 Babulal Chourasiya father of the injured, has stated in his examination in chief that at the time of accident offending vehicle was being driven by Gujraj Singh, respondent No. 2 herein.

Learned counsel further submits that in cross examination A.W.4 further states that "Purwale Chorasiya Gajraj Singh (Respondent No. 3) Ko thane le gaya the". This part of the statement A.W.4 amply proves that the offending vehicle was being driven by Gajraj Singh respondent No. 2.

Now, coming to the finding of the learned Tribunal that respondent No. 2 was not having valid licence, at the relevant time is concerned, undisputedly the burden was on insurance company to prove this fact. Learned counsel for respondent No. 3 submits that for proving this fact that respondent No. 2 was not having a valid licence, respondent No. 3 has examined NAW 1 Arun Shrivastava, Advocate who has satted that driving licence No. 6475/Jhansi/ 93 was given to him by respondent No. 3 for verification from the office of Regional Transport Authority and upon enquiry, it was found that said licence was not insured in the name of Gajraj Singh but was insured in the name of Mohammed Jabeer. The report of RTA is exhibited as Ex.D-3. There is no evidence on record to show that from where respondent No. 3 got the information that Driving Licence No. 6475/JHS/93 is in the name of respondent No.2. Without this evidence that licence No. 6475/JHS/93 belongs to Mohammed Jabeer, it is of no use. Apart from this, the certificate Ex. D-2 of licencing authority, Jhansi is neither on any prescribed proforma nor in the form of letter. Ex. D-1 a carbon copy of a letter addressed to Regional Transport Authority, Jhansi on the letter head v"f Shri Arun Shrivastava, Advocate NAW 1. On the rear part of it, which is Ex. D-2 it is mentioned that licence No. 6475/JHS/93 has been issued in the name of Mohammed Jabeer and not in the name of respondent No. 2 Gajraj Singh. This two lines report bears same signature from which the name is not readable and bears the seal of licencing authority, Jhansi. There is no evidence on record to prove that who has signed the exhibit D-2 and in whose presence it was signed. NAW 3 Shri Arun Shrivastava has admitted the fact that he himself has not inspected the record of Regional Transport Authority, Jhansi. Letter Ex.D.l is not addressed to licencing authority, Jhansi. In view of this, it cannot be said that respondent No.3 has established the fact that respondent No.2 was not possessing the driving licence.

Learned counsel for the appellant has placed reliance on a decision of this Court reported in Savitri Devi and Others Vs. Subhash Acharya and Others, in which it is held that report of the Insurance Co., based on the evidence of police documents, disclosing that at the time of accident driver was not possessing the licence is not sufficient to exempt the Insurance Co. from its liability.

Learned counsel for respondent No. 3 has placed reliance on a decision of this Court reported in 1999 ACJ 63 (New India Assurance Co. Ltd. Vs. Prem and Others) wherein it is held that in case driver is not possessing valid driving licence, then Insurance Co. is exempted from its liability. This case is of no assistance to respondent No. 3, as in this case, the owner admitted that driver was holding a learner''s licence which had expird before the accident. Further reliance is placed on Oriental Insurance Co. Ltd. Vs. Mulayam Bai and Others, wherein this Court has held that certificate issued by RTA is a public document. There is no dispute about this proposition of law that by no stretch of imagination Ex. D.2 can be said to be certificate issued by the office of Regional Transport Authority.

Learned counsel for the appellant has placed reliance on a decision of Apex Court reported in AIR 1979 SC 1862 (Bishandevi Vs. Sirbaksh Singh) wherein the Hon''ble Supreme Court has held that "it is the duty of the insurer to have substantiated his plea." Hon''ble Supreme Court did not hesitate in rejecting the insurer''s plea as false specially as the owner, who filed the written statement, a month later did not support the former''s plea. At last learned counsel for the appellant placed reliance on a decision reported in National Insurance Co. Ltd. Vs. Swaran Singh and Others, in which the Hon''ble Supreme Court has held that a fake or forged licence is as good as no licence but the requirement to establish that defence is that the insurer must prove that the owner was guilty of the willful breach of conditions of the insurance policy or the contract of insurance. The defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to insurance company, but whether despite the same, the plea of default on the part of the owner has been established or not, whether insured did not take reasonable and adequate care and caution to verify the genuineness or otherwise of the licence held by the driver would be a question which will have to be determined.

After applying this rule on the basis of record, it can safely be said that insurance co. has failed to establish that the driver of the offending vehicle was not having a valid licence.

In view of this, the appeal stands allowed. The award is modified. Respondent No. 3 is also held liable alongwith the other respondents. No order as to costs.