National Insurance Co.Ltd. vs Miss Sonam & Ors.
2014 Latest Caselaw 4789 Del

$~A-12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of Decision: 24.09.2014
+     MAC.APP. 584/2006

      NATIONAL INSURANCE CO.LTD. ..... Appellant
                   Through Ms. Namita Sharma and Mr.Keshav
                           Kumar, Advocates.

                          versus

      MISS SONAM & ORS.                      ..... Respondents
                   Through             Mr. Chandan Malik, Advocate for R-
                                       5 with respondent No.5-in-person.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JUSTICE JAYANT NATH, J. (ORAL)

1. The present appeal is filed by the appellant seeking to impugn the Award dated 16.3.2006. Limited prayer submission here is to grant recovery rights against respondent No.5, the owner of the offending vehicle which was not given by the Tribunal. It may be noted that respondent No.4 driver of the offending vehicle has already died.

2. The brief facts are that the deceased K.S.Tiwari was on 01.03.1999 going on his foot at Mahipalpur when he was hit by a truck said to be rashly driven by respondent No.4 at a very high speed. He fell down and sustained serious injuries. He was declared brought dead in the hospital.

3. Based on the evidence on record the Tribunal granted total compensation of Rs.6,65,000/- to the dependents, namely, three minor daughters inasmuch as his wife had already predeceased him.

4. Learned counsel appearing for the appellant has strenuously urged

that the driving license filed by respondent No.4 was fake. She submits that the Tribunal has hence erroneously though having concluded that the license is fake has fastened the liability on the appellant and not even granted recovery rights to the appellant.

5. On the other hand learned counsel for the respondent No.5 submits that alongwith his reply to the present appeal he has filed a photo copy of the driving license which was issued in favour of respondent No.4 by the Agra Authority which is license No.R-20649. He has also submitted separately in Court on 5.4.2013 a verification issued by the licensing authority Agra stating that the driving license No.R-20649 is a valid license. He hence submits that there is no mistake in the order of the Tribunal.

6. A perusal of the Award shows that the driver and owner of the offending vehicle, namely, respondents No.4 and 5 never appeared and were proceeded ex parte. However, respondent No.5 has only appeared here before this Court and has filed the said driving license No.R-20649 issued by the relevant authority from Agra.

7. Based on the evidence on record the Tribunal recorded that the insurance company has produced the evidence to show that the driving license of the driver was fake but the insurance company has not produced any evidence to show that the injured, namely, respondent No.5 was guilty of negligence and failed to exercise reasonable care. Hence, relying on the judgment of the Supreme Court in the case of United India Insurance Company Ltd. vs. Lehru and Ors., AIR 2003 SC 1292 and National Insurance Company Limited vs. Swaran Singh & Ors, (2004)3 SCC 297 the Tribunal directed that the appellant insurance company is liable to pay the compensation.

8. In my opinion there is no reason to interfere with the findings given

by the Tribunal.

9. A perusal of the record of the Tribunal shows that the conclusion recording that the driving license of the driver is fake is not borne from the material on record.

10. A perusal of the record shows that at page No.186 of the Trial Court Record there is a certified copy of the license which has been filed from the Court of Metropolitan Magistrate which is in the name of Mohan Singh which is driving license No.13811/MTR/98.

11. The appellants led the evidence of RW1 J.C.Bhatia, Senior Clerk, Licensing Authority, Mathura. He had brought some summoned record regarding driving license issued in 1998. He was shown certified copy of the driving license, presumably license No. 13811/MTR/98 (The evidence does not give the license number) which he has said was not issued by them. He has confirmed that he is working in the Mathura Licensing Authority. RW2 Sri Bhagwan, Assistant from the appellant insurance company had stated that the notice issued under Order 12 Rule 8 CPC was sent to the driver and owner of the vehicle through their counsel. Copy of the notice is Ex. RW2/2 and RW2/3. Postal receipt are Ex.RW2/4 and A.D.Card is RW2/5 served on Shri Tilak Raj/respondent No.5.

12. It is not clear as to how the police have filed a photocopy of this driving license No.13811/MTR/98 said to be in the name of Sh.Mohan Singh. A question to this effect was posed to the learned counsel for the appellant. She did not have an answer to the same.

13. On the other hand if one were to see the ordersheet dated 17.5.2002 of the Tribunal, the Tribunal notes an objection from the appellant/insurance company that they have deputed one Surveyor to the Licensing Authority, Agra and the concerned authority has withheld the verification report on the

ground of some enquiry going on and that their man had lastly visited the office of the licensing authority on 20.12.2001. An adjournment was requested on this ground but the Tribunal declined the adjournment and passed an appropriate order regarding the interim relief.

14. Hence, clearly at one place the appellants are seeking a report from the licensing authority Agra on the other hand on 31.8.2004 they have summoned a person from the licensing authority Mathura. The order dated 17.05.2002 of the Tribunal shows that the appellant were aware about the license R-20649/AG/86 issued in the name of respondent No.4 Sh.Mohan Singh by the Licensing Authority, Agra also.

15. This court noted on 15.2.2013 the submission of learned counsel for the appellant that the license placed on record by the respondent No.5 alongwith the reply, namely, R-20649/AG/86 from the licensing authority Agra is fake. This Court permitted the appellant to place on record the report within two weeks. Pursuant to the above the appellants have filed the affidavit of R.V.Singh, Surveyor and Ashok Parmar, Investigator with other supporting documents. It is implicit in this order and the order dated 15.04.2013 of this court that this court has permitted the parties to place on record the license No.R-20649/AG/86 and the subsequent verification reports by both the parties.

16. Learned counsel for respondent No.5 had also obtained a report from Licensing Authority Agra saying that the license is genuine. Verification report was handed over to the learned counsel for the appellant for the purpose of verification. Notice was also issued to the licensing authority Agra vide order dated 05.04.2013 to certify whether the license in question filed by respondent No.5 in the name of Mohan Singh respondent No.4 is genuine or not.

17. It appears that the report of the licensing authority from Agra based on the said order has not been received despite lapse of much time.

18. Several hearings have taken place after that. In my opinion, it was for the parties to take steps to prove their case. It is not possible to keep adjourning this matter as it is an appeal of 2006. The accident took place on 01.03.1999.

19. I may look at the reports placed on record by the respective parties. The appellant has filed an affidavit of Shri R.V.Singh, Surveyor, who has on his affidavit said that he has received a written confirmation from the Agra Licensing Authority that the driving license is „fake and not correct‟. He attaches a true translated copy of the document with the affidavit. Ashok Parmar from the appellant insurance company has reiterated the contents of the first affidavit.

20. A perusal of the translated copy of the alleged report shows that it is actually a notice issued by the Transport Department Agra asking the driver respondent No.4 to appear before the Transport Authority alongwith evidence as the license no. R-20649 was found to be forged. The show cause notice says that if Mohan Singh does not produce or procure relevant explanation/evidence it will be presumed that he has nothing to say in this matter and the notice records as under:-

"Therefore, under Sub-section (1) (e) of Section 19 of Motor Vehicle Act, 1998 exercising power thereunder shall be cancelled for which the responsibility shall be entirely yours".

21. In my opinion, this typed copy of a show cause notice which is only a translated copy without placing the photocopy of the original has no meaning. The said document has no stamp of the concerned authority. It is merely a show cause notice which purports to seek cancellation in exercise powers under section 19 of the M.V.Act. It does not conclusively show that

the license in question is fake.

22. It was put to learned counsel for the appellant as to what was the outcome of the show cause notice. It appears that the appellants have no details available in this regard.

23. As far as the report which is filed by respondent No.5 is concerned, the same is a communication said to have been written by Respondent No.4 Mohan Singh to the Licensing Authority Agra. On this communication a stamp is affixed purportedly by the concerned licensing authority confirming the genuineness of the driving license and also stating that the same is valid.

24. In my opinion in view of the evidence on record filed by the appellant it is not possible to conclude that the driving license of respondent No.4 was fake. There is no conclusive evidence to this effect to show that driving license of Mohan Singh was fake.

25. Accordingly, as the appeal was only confined to the issue of recovery rights as has also been noted by this court earlier also on 20.7.2007, the present appeal has no merits and is dismissed.

26. Statutory amount, if any, deposited by the appellant at the time of filing of the appeal be refunded to the appellant.

JAYANT NATH, J SEPTEMBER 24, 2014 n