National Insurance Co. Ltd. vs Jyoti Mehta and Others

Indermeet Kaur, J.—The order impugned before this Court is the Award dated 11.01.2010 vide which compensation in the sum of Rs. 6,73,680/- had been awarded in favour of the claimant. The contention of the Insurance Company before the Tribunal was that the driving licence of the driver was fake. This contention had also been noted while passing the Award; Insurance Company had prayed for a recovery certificate; this request had been rejected as the court had noted that no such evidence had been brought forthwith by the Insurance Company to substantiate this submission that the driving licence was fake. The only witness produced by the Insurance Company was the Clerk of the Insurance Company who was examined as R3W1; the Tribunal had noted that no witness had come from the Transport Authority to substantiate this submission.

Appeal has been filed primarily on this ground; contention of the Insurance Company being that the driving licence was fake; recovery rights should have been granted in favour of the Insurance Company. Learned Counsel for the Appellant has drawn attention of this Court to a document dated 10.08.2009 which was a reply received to an RTI wherein it had been informed that the driving licence bearing No. W.B.-01-563489 in the name of Ram Babu had not been issued from the office of Public Vehicles Department, Kolkata.

Evidence adduced by the Insurance Company comprised of one witness only. R3W1 was the Clerk of the Insurance Company; he had proved the notice under Order 12 Rule 8 of the CPC (hereinafter referred to as ''the Code'') having been served upon the driver who had refused to accept the said notice; his deposition was to the effect that the licence was not produced by the driver namely Ram Babu.

Record shows that the issues had been framed on 28.08.2006 when the matter was listed for the evidence of the Appellant. After the examination of the two witnesses of the Appellant on 12.12.2007, the Petitioner evidence stood closed and the matter was fixed for Respondent evidence. On 18.03.2008 i.e. the next date, no witness had appeared on behalf of the Respondent No. 3; on the following date i.e. 10.07.2008 the sole witness of Respondent No. 3 (R3W1 as noted supra) had been examined and discharged. It had been recorded that it would be exclusively the responsibility of the Insurance Company to procure the attendance of the remaining witnesses. Thereafter the matter was listed on 10.11.2008, 09.03.2009, when again no witness was present on behalf of the Respondent; on 09.03.2009 it had been noted that Respondent had moved an application for summoning the witnesses but the said application had been filed belatedly; in the interest of justice, one more last and final opportunity had been granted to Respondent for summoning the remaining Respondent witnesses subject to payment of cost of Rs. 500/- as cost; on the subsequent date i.e. 24.07.2009 again no witness was present. The request of the Respondent to adjourn the matter for another date in order to produce the remaining Respondent witnesses was thus rejected. Matter had been fixed for final arguments pursuant to which Award then had been pronounced.

Record thus substantiates that time and again several opportunities had been granted to the Respondent to lead evidence but for no cogent reason evidence was not led; court had also specifically stipulated that it would be the exclusive and sole responsibility of the Respondent to produce his witnesses on his own; there was no plausible explanation for non-production of the said witnesses on the various dates noted supra; several opportunities having been granted to the Respondent, Respondent evidence was rightly closed on 24.07.2009; it does not now lie in the mouth of the Respondent to state that Respondent should be given another opportunity to adduce his witnesses to substantiate this submission that the driving licence of the driver Ram Babu was a fake licence. This has been the defence of the Insurance Company right from the inspection and this had been noted by the Tribunal as far back as on 13.01.2004 when the written statement had been filed by the Insurance Company. Enough opportunity and time having already been granted to the Respondent, the Award on this ground suffers from no infirmity.

In these circumstances, recovery rights were rightly not granted in favour of the Insurance Company as a bald defence that the driving licence is fake without it having been substantiated by cogent evidence could not be a valid defence of the Insurance Company to avoid its liability. Learned Counsel for the Appellant has confined his argument only on this ground; he is not urging any other ground.

Appeal has no merit; it is dismissed.