Jharkhand High Court
National Insurance Company ... vs Saraswati Devi on 5 May, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 561 of 2016
National Insurance Company Limited through its
Legal Cell, Ranchi............ Appellant
Versus
1. Saraswati Devi
2. Rajeev Kumar Ranjan
3. Soni Kumari
4. Deepak Kumar Ranjan
5. Minor Deepesh Kumar Ranjan
6. Subhash Kumar
7. Raushan Kumar............ Respondents
......
Coram: Hon'ble Mr. Justice Ananda Sen
......
For the Appellant : Mr. Manish Kumar, Advocate
For Respondent Nos. 6-7 : Mr. Saurabh Shekhar, Advocate
Ms. Nidhi Kumari, Advocate
......
10/05.05.2022 Heard learned counsel appearing for the appellant and learned
counsel appearing for Respondent Nos. 6 & 7.
2. This appeal is directed against the judgment and award dated
13.04.2016, passed by the District Judge-III-cum-M.A.C.T., Jamshedpur
in Compensation Case No. 213 of 2014.
3. The only ground taken by the Insurance Company in this appeal
is that the offending vehicle, i.e. the motorcycle bearing Registration No.
BR06AD-2390, was being driven by one Raushan Kumar without having a
valid license and/or the license number which was mentioned is turned
out to be a fake license. Counsel for the appellant further submits that on
the aforesaid fact and since the driving license is fake, the Insurance
Company has got right to recover the amount of compensation from the
owner of the vehicle. He further submits that the fact that the license is
fake, came to the knowledge of the appellant-Insurance Company only
after the award was passed.
4. Considering the limited ground, which has been taken in this
appeal by the Insurance Company, this Court feels that this appeal can be
decided at this stage itself more so the lower court record is already
available.
5. The issue is in respect of the validity of the driving license and
whether the same is forged or genuine. The Insurance Company if takes a
plea about the validity or genuineness of the driving license, it has to give
specific pleadings in their written statement/show cause. A show cause
was filed by the Insurance Company before the Tribunal. In this show
cause, they have not taken the plea that the driving license is a fake and/
or is not valid. On 04.01.2016, an additional written statement/show
cause was filed by the Insurance Company where they casted doubt on the
validity/ genuineness of the driving license on the ground that the
documents were not being supplied.
6. The owner of the vehicle also appeared and filed his written
statement/ show cause. In Para-4 of the said show cause, he has provided
the driving license number and the period of validity which is from
12.06.2012 to 11.06.2017. Be it noted that the accident had taken place
on 31.05.2014.
7. The primary onus is upon the owner and/or driver of the vehicle
to assert that the offending vehicle was being driven by a person having an
authority to drive the same with a valid license. The owner, in this case by
providing the number of the driving license, has discharged his burden.
Once the owner has discharged the burden the same will shift upon the
Insurance Company.
8. Now, in this case, I have to see whether the Insurance Company
has discharged the onus, which has been shifted upon them. The
Insurance Company has adduced one witness, who is DW-1 Bishwajeet
Chaudhary, who happens to be practicing advocate at Jamshedpur. He
stated that he was engaged as an investigator by the National Insurance
Company to verify the documents associated with the vehicle number
BR06AD-2390. He stated that for verification of the documents, he wrote a
letter to Mr. Subhash Kumar S/o Chandeshwar Kumar for providing all
documents associated with said vehicle being the owner of the same. He
further stated that he asked for the driving license of the driver of the
vehicle bearing Registration No. BR06AD-2390, vide letter dated
10.12.2015, but he did not receive any reply to his office letter nor he did
receive any document, which he requested for. He exhibited the postal slip
of the letter, which was addressed to Subhash Kumar on 10.12.2015.
This is the statement of the witness before the Court.
9. From the aforesaid evidence, led by the Insurance Company, it is
clear that there is nothing to suggest that the driving license was either
fake or not valid at the time of accident. The Insurance Company has not
discharged the onus, which was shifted upon them. Once the driving
license number was produced before the court, it was the duty of the
Insurance Company to verify the said license. Mere asking for a copy of the
license or writing some letters will not complete the job. The Investigator's
job is to investigate and to find out the fact as to as to whether the driving
license was genuine or not or whether valid or not, but in this case it was
not done.
10. If the Insurance Company takes a plea that the driving license of
the driver of the offending vehicle is fake or not valid, they have to come up
with a positive evidence and no inference can be drawn when the license
number and/or the details of the license has been disclosed by the owner
of the vehicle.
11. In the instant case, I find that the Insurance Company has tried
to convince this Court that an inference should be drawn since the owner
has not produced the copy of the driving license. This Court is not
convinced with the said argument in absence of specific positive evidence,
which has not been led by the Insurance Company. Thus, the ground
taken by the Insurance Company cannot be entertained in this appeal.
12. Though, this Court cannot go into the facts, post award, that to,
in absence of any application under Order 41 Rule 27of the Code of Civil
Procedure, yet for the satisfaction of the lawyer of the Insurance Company,
this Court has gone through the documents which the learned lawyer was
producing to convince this Court. After going through that document also I
find that the said document also do not suggest that the license was fake.
The document is a letter, which only suggest that the original Register is
not traceable. This also will not help the Insurance Company.
13. Considering what has been held above, I find no merit in this
appeal, thus, this appeal is dismissed.
The statutory amount, which was deposited by the Insurance
Company at the time of filing this appeal, should be refunded to the
Insurance Company.
(Ananda Sen, J)
Mukund/-cp.2
