The New India Assurance Co. Ltd. vs Padma Devi & Ors.
2012 Latest Caselaw 7188 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +      FAO No.658/2003

%                           Date of decision : 14th December, 2012

       THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
                     Through : Mr. Pankaj Seth, Adv.

                   versus

       PADMA DEVI & ORS.                         ..... Respondents
                    Through :         None.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

                            JUDGMENT

1. The appellant has challenged the award of the Claims Tribunal whereby compensation of `12,73,000/- has been awarded to the claimants. The appellant has challenged the award on the ground that the driver of the offending vehicle was not holding a valid driving licence and therefore, the appellant is entitled to recovery rights against the owner and driver of the offending vehicle.

2. The accident dated 21st November, 1995 resulted in the death of Dhanpat Rajput. The deceased was survived by his widow, two sons and a daughter who filed the claim petition before the Claims Tribunal. The appellant contested the petition on the ground that the driving licence of the driver of the offending vehicle was found to be fake.

3. The appellant examined two witnesses to prove his said defence. The Administrative Officer of the appellant appeared in the witness box as R1W1 and proved the notice issued to the insured as Ex.R1W1/1 and copy of the Insurance Policy as Ex.R1W1/2. R1W1 deposed that the appellant got the genuineness of the driving licence of the driver investigated through an Investigator who submitted his report to the effect that the said licence was not issued by the Road Transport Office, Agra. The surveyor of the appellant appeared in the witness box as R1W2 and deposed that he was appointed by the appellant to verify the driving licence of the driver, Manoj Kumar whereupon he approached the Licencing Authority, Agra and upon verification of the records, he found that the said licence was not issued by the concerned authority. R1W2 proved his report - Ex.R1W2/1. The appellant also examined the Regional Inspector of Road Transport Office, Agra as R1W3 who proved the report - Ex.R1W3/1.

4. The Claims Tribunal held that the witness - R1W3 did not bring the licence issued on Sr.No.M-1938/AG/88 and, therefore, no reliance can be placed on his statement. The Tribunal further held that the appellant has failed to discharge the burden of proving that the driving licence of the driver was not genuine.

5. The learned counsel for the appellant submits that the Claims Tribunal erred in appreciating the statement of the witnesses and the documents proved by the witnesses. It is submitted that the appellant issued a notice - Ex.R1W1/1 to the owner as well as the driver of the offending vehicle in which it was clearly notified that

the driving licence in the name of the driver has not been issued by the concerned authority. The said notice was duly served on the owner of the offending vehicle vide postal receipt and A.D. card - Ex.R3W1/1. The owner as well as the driver of the offending vehicle chose not to respond to the said notice. It is further submitted that the Investigator also appeared in the witness box and proved its report - Ex.R1W1.

6. There is merit in the contention of the learned counsel for the appellant who has succeeded in proving that the driving licence of the driver of the offending vehicle was fake in view of the statement of the three witnesses, namely, R1W1, R1W2 and R1W3 and the documents - Ex.R1W1/1, Ex.R1W1/2, Ex.R1W2/1, Ex.R1W3/1, Ex.R3W1/1. R1W3 from Road Transport Office, Agra has proved the report Ex.R1W3/1 in which it is certified the licence Nos.M-1938/AG/88 and 5824/AG/92 have not been issued on 16th March, 1988 which is sufficient to prove that the driving licence held by the driver was fake. Since the owner and driver of the offending vehicle failed to respond to the notice under Order XII Rule 8 of the Code of Civil Procedure and also failed to rebut the evidence led by the appellant, the presumption is drawn against him under Section 114 of the Indian Evidence Act, 1872 that the breach on the part of the owner was willful. The appellant is entitled to recovery rights against the owner and driver of the offending vehicle on the ground that the driving licence held by the driver of the offending vehicle was proved to be fake. The

contrary finding of the Claims Tribunal is, therefore, liable to be set aside.

7. For the aforesaid reasons, the appeal is allowed and the impugned award is modified to the limited extent that upon making payment of the award amount to the claimants, the appellant shall be entitled to the recovery rights against respondent No.5, Jatinder Kumar and respondent No.6, Manoj Kumar.

8. The learned counsel for the appellant submits that the appellant has deposited the entire award amount with the Claims Tribunal. The statement of the appellant is taken on record. The copies of the documents relating to the deposit of the award amount are also taken on record.

J.R. MIDHA, J DECEMBER 14, 2012