26 2021 National Insurance Co. ... vs 6 Pramila Devi & Ors
2021 Latest Caselaw 5208 Cal

Ct.
No.   28.9                      F.M.A. 1089 of 2007
26    2021                      National Insurance Co. Limited
                                             Vs.
 6                                   Pramila Devi & Ors.
akb
                                           with
                                     C.O.T. 13 of 2019
                                   Pramila Devi & Ors.
                                            Vs.
                          National Insurance Co. Limited & Anr.
                                 ( Via Video Conference )


             Mr. Rajesh Singh            ...For the Appellant/Insurance Co.
                                          and respondent in COT 13 of 2019

Mr. Ali Imam Shah ...For the Claimants/Respondents & appellants in COT 13 of 2019

The instant appeal of Insurance Company is directed against the judgment and award dated September 12, 2006 passed by the learned Judge, Motor Accident Claims Tribunal, Fast Track 1st Court, Burdwan, in M.A.C. Case No. 16 of 2006 / 327 of 2005 in a claim under Section 166 of the Motor Vehicles Act, 1988 for the death of one 42 years old 'Dukhi Gope' in a vehicular accident dated April 04, 2005.

The appellant Insurance Company disputes its liability of satisfaction of award on the ground that the driving licence of the driver of the offending taxi was fake. Insurer states that for violation of policy conditions, it should not be asked to indemnify the insured and the award should be satisfied by the owner of the said vehicle.

The learned Counsel appearing on behalf of the claimants/respondents disputes the contention of the Insurance Company and submits that the learned Tribunal was correct in awarding compensation and making insurer liable to pay the same.

Upon hearing the parties, I am unable to accept the argument of 'fake driving licence' as contended by the insurer. Appellant insurer submits that as per seizure list, the offending vehicle was driven by one 'Nirmal Bauri'. In the list issued by the concerned MV Department, it was found that the said licence was issued in the name of 'Bal Mukund Prasad'. On such premise, insurer made out its case of fake driving licence. On the other hand, claimants rely upon 'true copy' of the award which states that there was a typographical error in the seizure list and the last digit of the driving licence number should be '0'. 'True copy' of the award speaks that claimants filed a separate 'information slip' before the Tribunal which confirms that the driving licence number WB-37/005450 was issued in the name of accused driver 'Nirmal Bauri'. For such reason, the allegations of fake driving licence as made by the insurer, was not accepted by the Tribunal itself.

In addition to the above, Insurance Company did not bring any evidence to prove its case. No one from the Motor Vehicles Department came forward to substantiate the case of the insurer. Neither the owner nor the driver could be brought before the Tribunal. None from the office of the Insurance Company deposed to deny insurer's liability. Thus, insurer could not substantiate its case conclusively. Moreover, Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Swaran Singh & Ors., reported in

2004(1) TAC 321 held that the defence of licence being fake or

forged can certainly be raised but insurer has to prove that insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by driver. In the instant case, Insurance Company could not establish that the owner of the vehicle was aware of 'fake driving licence',

if any, of his driver. In view of the aforesaid, the ground raised by the insurer in absence of specific supporting evidence does not bring confidence to uphold its cause and is found to be devoid of any merit.

By an earlier order of this Court, the name of respondent No. 7, 'Kari Devi' has been deleted and the attainment of majority of respondent Nos. 2 to 5 has also been recorded.

The learned Counsel for the Insurance Company submits that the insurer has secured the awarded amount of Rs.15,00,000/- by way of two separate deposits with the learned Registrar General of this Court. Learned Counsel for the claimants admits that by an earlier order of this Court, claimants have already withdrawn a sum of Rs.1,31,250/- from the said deposit.

Accordingly, the claimants/respondents shall be entitled to claim the entire balance deposited sum together with accrued interest from the office of the Registrar General of this Court. The claimants/respondents shall furnish particulars of their respective Bank accounts with the Registrar General of this Court as expeditiously as possible. Upon receipt of such details, the Registrar General is directed to pay the total deposited amount along with accrued interest, directly to the claimants' bank accounts through NEFT/RTGS. In accordance with law and in the same manner and proportion of the award as decided by the Court below and subsequently modified by this Court, within a period of four weeks.

The Registrar General shall check the veracity of the bank accounts and the identity of the claimants before

disbursing the amounts.

Insurance Company is given liberty to file a civil suit against the owner of the offending vehicle for recovery of the compensation paid on the ground that it was the sole obligation of the owner of the offending vehicle to pay the compensation, if it can prove its case that the driver of the offending vehicle did not possess a valid driving licence at the time of accident.

With the aforesaid directions, the instant appeal, being F.M.A. 1089 of 2007 is disposed of. The cross objection of the claimants, being COT 13 of 2019, filed 13 years after filing of the appeal, is not pressed and is accordingly disposed of.

There shall be no further order as to costs.

In view of disposal of the appeal, connected application, if any, is also disposed of. The concerned Department is directed to trace out the application and tag the same with this appeal.

The Registry is directed to send down the lower Court records at once, if received by this time.

Urgent photostat certified copy of this order, if applied for, be given to the parties, upon compliance of all formalities, on priority basis.

( Shekhar B. Saraf, J.)