Page No.# 1/8 vs Smt. Mawrachi Basumatari And Ors
2025 Latest Caselaw 5024 Gua

Gauhati High Court

Page No.# 1/8 vs Smt. Mawrachi Basumatari And Ors on 27 May, 2025

                                                                Page No.# 1/8

GAHC010006712014




                                                          2025:GAU-AS:6750

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : MACApp./69/2014

         NATIONAL INSURANCE CO LTD
         HAVING ITS REGISTERED OFFICE AT MIDDLETON STREET, KOLKATA AND
         ONE OF THE REGIONAL OFFICES KNOWN AS GUWAHTI REGIONAL
         OFFICE , .G. S. ROAD, BHANGAGARH, GUWAHATI 5, HAVING ONE OF ITS
         DIVISIONAL OFFICE AT PAN BAZAR, GUWAHATI, KAMRUP.



         VERSUS

         SMT. MAWRACHI BASUMATARI and ORS
         S/O LT. SUBHADRA BASUMATARY, R/O KACHUTOLIGAON, P.S.
         GOGAMUKH, PIN 787034, DIST. DHEMAJI, ASSAM.

         2:ON THE DEATH OF LAMBUDHAR HAZARIKA HIS LEGAL HEIRS
          S/O INDRESWAR HAZARIKA
          R/O BISHNUNAGAR
          BORAGADHOI
          P.O. and P.S. DULIAJAN
          DIST. DIBRUGARH
         ASSAM.

         2.1:SRI PANKAJ HAZARIKA
          SON OF LATE LAMBUDHAR HAZARIKA
         RESIDENT OF BISHNUNAGAR
          BORAGADHOI
         P.O AND P.S. DULIAJAN
         DISTRICT. DIBRUGARH (ASSAM)

         3:NCHOLASH HEMRAN

          S/O SRI PHILLIPS HEMRAN
          R/O BOGOLIJAN
          HARMATI
                                                                               Page No.# 2/8

             P.S. LALUE
             ASSAM

Advocate for the Petitioner   : MS.P HUJURI, MS.A BORA,MR A SAIKIA,MR.R K BHATRA

Advocate for the Respondent : MR.K BHATTACHARJEE, MS.S KHANIKAR(R-2),MR.D
BANERJEE,MS.P BORGOHAIN,MS.M BHATTACHARJEE,MS.P BARUAH(R-2)




                                  BEFORE
              HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER

                                         ORDER

Date : 27-05-2025

Heard learned counsel Ms. A. Biyani, for the appellant and Mr. K. Bhattarcharjee for the respondent No. 1. None appears for the respondent No. 2 and 3 in spite of notice.

2. This appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988 against the Judgment and award dated 27.09.2012 passed by learned Member MACT Kamrup in MAC Case No. 2513/2005 awarding Rs 2,36,000/-(Rupees two lakh thirty six thousand) plus 6% interest from the date of filing of the claim petition till payment.

3. The learned counsel for the appellant has submitted that the offending vehicle was driven by a driver having fake driving licence at the relevant time of the alleged accident and the respondent No. 2(Owner) had allowed the respondent No. 3 (driver) to drive the vehicle, who was having a fake driving licence. Therefore, in terms of the policy, the appellant was exonerated of its liability to pay the compensation and the liability to pay the compensation lies on the owner/insured respondent No.

2. Page No.# 3/8

4. It is also submitted that the evidence of the DW1 clearly established the plea that the offending vehicle was driven by respondent No. 3/driver whose driving licence was a fake one and thereby the terms and conditions of the policy were violated, which prohibited plying of the vehicle without a valid driving licences.

5. Learned counsel further states that the trial court ought to have considered the evidence adduced by the DW1 who exhibited the report of the investigator which reported to the effect that the driving licence No. 8389/NW/01 was not issued in the year 2001 but in 1998 from DTO Wokha, Nagaland and when the said evidence established the plea that the said driving licence was a fake one, the learned Member MACT ought to have held that the policy conditions were violated and that the insurer was absolved of any liability to pay compensation and the award should have been made payable only by the insured/owner; the respondent No.

2. And therefore, no award ought to have been made against the insurer/appellant.

6. Learned counsel for the appellant further submits that the insured/appellant could not have been made responsible to pay any compensation in view of the fault of the owner/insured in employing a person with a fake driving licence and in letting him drive the vehicle in violation of policy condition and also the provision of the Motor Vehicle's Act. The limited prayer of the appellant is that the award requires modification and the award should be made payable by the owner/ respondent No. 2.

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7. In support of her submission, learned counsel for the appellant has relied on the case of PAPPU AND OTHERS Versus VINOD KUMAR LAMBA AND ANOTHER (2018) 3SCC 208. In the case relied upon, the hon'ble Supreme Court was of the view that the insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licences at the relevant time. The court further held that the insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle. The court accordingly directed that the compensation amount shall be paid and satisfied by the insurer, with liberty to recover the same from the owner of the vehicle in accordance with law. Learned counsel therefore submits that the present case is squarely covered by the judgment of Pappu and Others (Supra).

8. Learned counsel, Mr. K. Bhattarcharjee appearing for the claimant/respondent No. 1 submits that the factum of the accident on 13.07.2005 involving vehicle No. AR-01/B-3339 is not disputed. It is also not disputed that the claimant is entitled to receive compensation for the Page No.# 5/8

injury sustained by him. He has drawn the attention of this Court to the impugned judgment award dated 27.09.2012 where the learned Member MACT had opined that even though the report was given that the license is false, neither the DTO nor any assistant of his office has been examined to prove the plea of the company. Some whitening marks were noticed on the endorsement portion of the letter dated 15.07.2006 and the endorsement in the said letter was made by the DTO Wokha, Nagaland. The learned Member MACT came to a finding that on basis of the doubtful endorsement it cannot be held that the license was a false one and therefore, it was not proved that there was willful violation of the policy condition by the owner. Learned counsel has submitted that in any view of the matter since, the fact of accident or the injuries or the rash and negligent driving of the offending vehicle are not disputed, he is entitled to the compensation. He has submitted that in the event, this Court finds that the insurer/appellant is not liable, the court may direct for " Pay and recover" option as already laid down by the hon'ble Supreme Court in the case of SINGH RAM Versus NIRMALA AND ORS in 2018 0 Supreme (SC) 209 and the Coordinate Bench of this Court in Judgment order dated 15.12.2022 in MAC Appeal 110 of 2016, stating that if a driver of an offending vehicle does not possess a valid driving vehicle license the mere fact that the driving licenses is fake, per se would not absolve the insurer and in such case the insurer has to pay the compensation but recover the same from the owner/insured in accordance with law.

9. I have considered the submission of the opposing counsels and perused the trial court records in original, and also the authorities relied upon by the parties. In the present case the owner/respondent No. 2 did Page No.# 6/8

not contest the case before the learned Member MACT and the case proceeded ex-parte against them. Before this Court also the respondent No. 2 has not appeared in spite of notice. In the present appeal, the fact that on 13.07.2005 the respondent No. 1/claimant met with an accident while travelling in the Maruti car No AR/01/B-3339 is not in dispute. It is also not in dispute that the accident occurred due to the rash and negligent driving of the driver of the said car. Before the learned Member MACT the appellant had adduced evidence through one Tapan Chakraborty, Administrative Officer in the Office of National Insurance Company Limited, GS Road, Guwahati as DW1. He deposed that the investigator of the insurance company had written to the District Transfer Officer Wokha, Nagaland vide letter dated 15.07.2006 praying for verification of driving license No. 8389/NW/01. Accordingly, in the said letter the office of the DTO Wokha by way of endorsement remarked that the "The series 8389 was issued in the year 1988 and not 2001 and hence, found false". In his cross examination, DW stated that "by seeing the license it is difficult to say whether it is genuine or false". He also stated that "I do not know why the DTO put whitener in the report". This Court has also observed that the DTO Wokha nor any of the office staff of the DTO has been examined to prove the stand of the appellant/insurer. The DW1 also could not prove that the driving license was false in the absence of records from the office of the DTO Wokha, Nagaland.

10. It is trite law that the insurer cannot avoid liability by claming that the driving license was fake unless they can demonstrate that the vehicle owner was aware of the falsity and still allowed the driver to operate the vehicle. The insurer company must prove that the vehicle owner failed in Page No.# 7/8

their responsibility to ensure that the driver had valid license before allowing him to drive. The hon'ble Supreme Court in the case of IFFCO Tokio General Insurance Co. Ltd. Versus Geeta Devi and Others reported in 2023 INSC 954 emphasized that the burden of proof lies with the insurance company to establish a willful breach of policy conditions by the insured to absolve the insurer of liability. The Court stated that the mere possession of a fake driving license per se would not absolve the insurer. The judgment of IFFO Tokio (Supra) has reiterated the need for insurers to meet the high burden of proof when contesting liability based on the validity of driver's licenses.

11. This Court is of the view that the learned Member MACT had came to a correct finding by holding that the willful violation of the policy condition by the owner/respondent No. 2 was not proved since, there was no evidence that the owner/respondent No. 2 had knowledge that the driving license was a fake one. Moreover, as the respondent No. 2/ owner had not entered appearance, it was upto the insurer to prove that the license was fake.

12. In view of the observations made above, the appeal is dismissed. The insurer/appellant is directed to fulfill the award as directed by the learned Member MACT, Kamrup Guwahati. The statutory deposit, if any made by the appellant shall be adjusted against the award to be made to the claimant/ respondent No. 1.

JUDGE Page No.# 8/8

Comparing Assistant