The Oriental Insurance Company ... vs [email protected] & Ors.
2017 Latest Caselaw 718 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Date of Decision: February 08, 2017

+     MAC.APP. 501/2008 & C.M.No.13447/2008


      THE ORIENTAL INSURANCE COMPANY LTD .....Appellant
                    Through: Mr. C.K. Gola & Mr. Abhishek
                             Kumar, Advocates

                         Versus

      HARIOM @ HARISH & ORS.                 .....Respondents
                  Through: Mr. Rajeev Kumar, Advocate for
                             respondent No.1

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                       JUDGMENT

% ORAL

1. Impugned Award of 5th July, 2008, grants compensation of `6,12,000/- with interest @7.5% p.a. to respondent-claimant, who was injured in a road accident on 7th October, 2005. The factual background of this case already stands noted in the impugned Award and so, needs no reproduction. Suffice to note that in this appeal, recovery rights are sought against owner of the vehicle in question i.e. the first respondent. Driver of vehicle in question was ex parte before learned Motor Accident Claims Tribunal (hereinafter referred to as Tribunal).

2. To seek recovery rights, learned counsel for appellant-Insurer

draws the attention of this Court to paragraph No.28 of the impugned Award to point out that learned Tribunal has already returned a finding that driving license of driver of vehicle in question was fake and so, recovery rights ought to have been granted to appellant-Insurer. Attention of this Court is drawn to copy of driving license, which is on trial court record, to show that this driving license has been purportedly issued by Licencing Authority, Mathura for a period of six years. It is submitted by appellant-Insurer's counsel that on the face of it, this driving license is fake because as per policy of the licensing authority, driving license is issued for three years and not more. It is pointed out that as per evidence of R3W1, an official from licensing authority, the aforesaid driving license has not been issued by them. So, it is submitted that recovery rights ought to be granted to appellant-Insurer.

3. In support of above submissions, learned counsel for appellant- Insurer relies upon decision in Pushkar Mehra Vs. Brij Mohan Kushwaha & ors. 2015 (12) SCC 688 to submit that wherein driving license was found not to be issued by concerned licensing authority, recovery rights were granted to Insurer. Learned counsel for appellant-Insurer also relies upon decision in Prem Kumari & ors. Vs. Prahlad Dev & ors. (2008) 3 SCC 193 wherein driver was not holding valid driving license and, so recovery rights were granted to Insurer. Reliance is also placed upon decision in United India Insurance Co. Ltd. Vs. Sujata Arora & ors. 2013 (3) TAC 29 SC to submit Insurer ought to be exonerated from paying compensation where driver's license was found to be fake.

4. On the contrary learned counsel for respondent-owner draws the

attention of this Court to paragraph No.31 & 32 of the impugned Award to point out that due diligence was shown by respondent-owner and that it has not been put in cross-examination to respondent-owner or to official from concerned licensing authority regarding driving license in question being valid for three years or six years and so on this plea, recovery rights ought not be granted to appellant-Insurer. Counsel for respondent-owner has placed reliance upon decision in Pepsu Road Transport Corporation Vs. National Insurance Company (2013) 10 SCC 217 to submit that Insurer is liable to pay compensation even if driver's license is found to be fake when owner has taken reasonable care in employing driver. So, it is submitted that appeal is without any merit. Nothing else is urged by either side.

5. Upon hearing and on perusal of evidence on record and the decisions cited, I find that the decisions relied upon by appellants' counsel are of no avail to the case in hand, as in none of these decisions, crucial aspect of due diligence of owner in employing driver has been considered. In the instant case, it has not been put to the concerned official from the licensing authority that the validity of driving license is three years and not six years. The official witness (R3W1) has simply proved the letter (EX.R3W1/A) issued by the concerned licensing authority, which merely states that if photocopy of the driving license is sent, then only it is possible to give a conclusive report regarding genuineness of driving licence. However, the concerned official (R3W1) from the licensing authority has deposed on the basis of summoned record that the driving license in question has never been issued by the

said licensing authority. In view thereof, finding of learned Tribunal that the driving license was fake is justified. Relevantly, the driver of vehicle in question was ex parte before the learned Tribunal and has not been made a party in this appeal and so, no orders to his detriment can be obtained by appellant in this appeal.

6. The pertinent observations of Supreme Court in Pepsu Road Transport Corporation Vs. National Insurance Company (2013) 10 SCC 217 are as under:-

"But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver."

7. The Supreme Court in Pepsu Road (supra) while dealing with the case of fake driving license has reiterated that if owner of a vehicle satisfies himself as to the competence of driver and has taken reasonable care in verifying the genuineness of driving license, then in such a case, no recovery rights against the said owner of a vehicle can be granted. In

the instant case, in paragraphs No. 31 and 32 of the impugned Award, the finding returned is that respondent-owner of vehicle in question had exercised reasonable care to check the driving license of driver of vehicle in question and so, respondent-owner cannot be saddled with liability to pay the awarded amount. In the considered opinion of this Court, recovery rights ought not to be granted to appellant against respondent/owner of vehicle in question, as there is no cogent evidence on record to dislodge the finding of due diligence exercised by owner of vehicle in question. Thus, impugned Award is unassailable and so, this appeal and application are liable to be rejected.

8. The appeal and application are accordingly dismissed.

(SUNIL GAUR) JUDGE FEBRUARY 08, 2017 r