Gauhati High Court
National Insurance Company ... vs Md Iqbal Hussain @ Ekbal Hussain ... on 4 April, 2022
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GAHC010043572018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./292/2018
NATIONAL INSURANCE COMPANY LIMITED
REGISTERED HEAD OFFICE AT 3, MIDDLETON STREET, CALCUTTA 700071
REPRESENTED BY THE ASSTT. MANAGER, GAUHATI REGIONAL OFFICE,
BHANGAGARH, GUWAHATI 781005
VERSUS
MD IQBAL HUSSAIN @ EKBAL HUSSAIN AND 2 ORS
S/O MD. ALI HUSSAIN, VILL. BIDYAPARA WARD NO. 8, P.O., P.S. AND DIST.
DHUBRI, ASSAM, PIN 783324
2:MEHBUB ALOM (OWNER)
S/O LATE MOZIBAR RAHMAN
VILL. JHAGRARPAR PT-I
P.O. JHAGRARPAR
P.S. AND DIST. DHUBRI
ASSAM
PIN 783325
3:JAHIRUDDIN ALI (DRIVER)
S/O LATE LOKMAN ALI
VILL. KHEWARCHAR PT-I
P.O. AND P.S. BILASIPARA
DIST. DHUBRI
ASSAM.PIN 78334
Advocate for the Petitioner : MS. R D MOZUMDAR
Advocate for the Respondent : MR. M KHAN (R 1)
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BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
JUDGMENT AND ORDER
04.04.2022
Hear Ms. R. D. Mozumder, learned Counsel appearing for the appellant as well
as Mr. M. Khan, learned Counsel representing the respondents.
2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the
judgment and award dated 31.07.2017 passed by the MACT, Dhubri in MAC Case
No. 87/2014.
3. On 02.04.2013, at about 3.10 PM, the respondent was driving a motorcycle
bearing registration number AS-17-D-575 and when he reached Modergola, one
TATA Magic bearing registration no. AS-17-B-1900 which was coming from the
opposite direction hit the motorcycle of the respondents and the respondents
sustained grievous injuries.
4. The Insurance Company/Appellate contested the case with routine defences.
5. On the basis of the pleadings, the Tribunal framed the following issues:
(i) Whether the accident had taken place due to rash and negligent driving
of the driver of the vehicle no. AS-17-B-1900 (TATA Magic) and the
claimant had sustained injuries in the said road traffic accident?
(ii) Whether the offending vehicle was insured with M/s National Insurance
Co. Ltd. at the time of the accident?
(iii) What shall be the just and proper compensation and by whom payable?
(iv) Whether the claimant is entitled to get relief as prayed for?
6. The claimants/respondents examined two witnesses and the appellant
examined one witness. On the basis of the evidence on record, the Tribunal directed
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the appellant Insurance Company to pay a compensation of Rs.1,34,343/- with
interest @ 9% per annum to be calculated from the date of filing of the claim petition.
7. In this case, name of the driver of the vehicle number AS-17-B-1900 is Jahiruddin
Ali. The Insurance Company examined one witness in order to prove the fact that the
license which was produced before the court below did not belong to Jahiruddin Ali.
The witness DW-1 examined by the appellant is an employee of the Office of the
DTO, Kokrajhar. He stated in his evidence that the driving license produced in the
Tribunal was actually issued to a person called Ankit Jain, which was valid from
02.06.1999 till 31.05.2002.
8. The learned Tribunal has considered that matter and held that the driving
license produced by Jahiruddin Ali is a fake one. Thereafter, following the ratio laid
down by the Supreme Court in National Insurance Co. vs. Swaran Singh, reported in
(2004) 3 SCC 297, the Tribunal fastened the appellant Insurance Company with the
liability to pay the compensation.
9. Ms. Mozumder submits that it is not a case of fake license. Because the
evidence is clear that the license was issued to one Ankit Jain and which was valid
from 02.06.1999 to 31.05.2002. According to Ms. Mozumder further submits that after
11(eleven) years of expiry of the license of Ankit Jain, the accident took place on
02.04.2013. The learned counsel has submitted that it is not a case of fake license but
it is a case of no license.
10. Mr. Khan has submitted that the Insurance Company cannot be permitted to
avoid its liability on the ground that at the time of the accident the driver did not
have a valid license.
11. The learned counsel Mr. Khan has relied upon a decision of the Supreme Court
that was delivered in the case of Pepsu RTC v. National Insurance Co., reported in
(2013) 10 SCC 217 . Para 10 of the aforesaid judgment is quoted as under:
"10. In a claim for compensation, it is certainly open to the insurer under
Section 149(2)(a)(ii) to take a defence that the driver of the vehicle
involved in the accident was not duly licensed. Once such a defence is
taken, the onus is on the insurer. 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
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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. However, the situation would be different if at the
time of insurance of the vehicle or thereafter the insurance company
requires the owner of the vehicle to have the licence duly verified from
the licensing authority or if the attention of the owner of the vehicle is
otherwise invited to the allegation that the licence issued to the driver
employed by him is a fake one and yet the owner does not take
appropriate action for verification of the matter regarding the
genuineness of the licence from the licensing authority. That is what is
explained in Swaran Singh case [National Insurance Co. Ltd. v. Swaran
Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] . If despite such information
with the owner that the licence possessed by his driver is fake, no action
is taken by the insured for appropriate verification, then the insured will
be at fault and, in such circumstances, the Insurance Company is not
liable for the compensation."
12. I have considered the submissions made by the learned counsels for the both
sides.
13. According to the Pepsu RTC (supra), at the time of hiring a driver the owner is to
satisfy himself that the driver had a valid driving license and the owner is not
expected to go beyond that exercise. The owner is not expected to verify the
genuineness of the driving license.
14. In the case in hand, it is proved that the driving license which was relied upon
by the respondent belonged to Ankit Jain not Jahiruddin Ali. Even if Jahiruddin Ali is
known as Ankit Jain then also the license expired 11 (eleven) years before the
accident took place. Therefore, at the time of accident, Jahiruddin Ali never had a
driving licence. Therefore, I have decided to disagree with the decision of the
Tribunal which held the licence to be a fake one. In fact, on the date of the
accident, there was no valid driving licence of Jahiruddin Ali. So, it is a case of
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driving without a driving license and in that case, the Insurance Company cannot be
held liable to pay compensation.
15. For the aforesaid reason, the appeal is partly allowed and the award stands
modified to the extent that the appellant Insurance Company is not liable to pay
compensation to the respondent. It is the owner of the TATA Magic bearing
registration no. AS-17-B-1900, who is liable to pay compensation to the respondents.
16. With the aforesaid direction, the present appeal is disposed of.
17. Send back the LCR.
JUDGE
Comparing Assistant
