New India Assurance Company Ltd. vs Nabla Ashraf Zehgir and Others

M. Y. Kawoosa, Judge.

This order will dispose of C. I. M. A. No. 80/1996, an appeal filed by New India Assurance Company Ltd. against the respondents, who are

claimants of compensation and Cross Appeal No. 90/1996 filed by the respondents for the enhancement of the award. 2. Both the appeals

emanate from ah award dated 9th January, 1996 passed by Motor Accidents Claims Tribunal, Jammu to the tune of Rs. 1,20,000/, in a claim

petition entitled 'Nabla Ashraf Zehgir and others Versus New India Assurance Company Ltd. In the it was stated that husband of the petition

respondent died in a vehicular accident on March 05,1994 near Patoli Morh Janipur Jammu, leaving behind his widowrespondnet1 and

childrenrespondents 2 and 3. Respondent in the claim petition pleaded that her husband died due to rash and negligent driving of respondent5. The

petition was resisted before the Tribunal on the grounds that the Vehicle was being plied by a person not holding a valid license, so there has been

breach of terms and conditions of the Insurance Policy. Appellant due to that breach could not be held liable to indemnify the payment of

compensation to respondent1 and her children. However, issues were framed. Issue No. 3 reads as follows :

Whether the insurance company is exempt from the liability to indemnify the insured, if so how ? OPR3

Motor Accidents Claims Tribunal, Jammu held this issue not proved and decided the case against the present appellant. Present appellant has

pleaded that the driver of the vehicle has shown the license No. 2013/DTC/8990 allege a to have been issued by the Licensing Authorities,

Hoshiarpur, which was future alleged to have been renewed by R. T O Jammu under renewal N0.25231/TPJ dated 15/04/1989. On verification

from Licensing Authorities. Hoshiarpur, it was certified by the said Authority that the aforementioned driving license was issued by that office not in

the name of the respondent3 driver, but in the name of Inderjit Singh. Similarly, R. T. O. Jammu also certified that renewal stands in the name of

another person, namely, Kartar Chand of Assam. It has been further contended that the appellant filed an application on 11.12.1995 before the

trial Court to call the Licensing Authorities, Hoshiarpur as a witness. But without deciding that application the trial court decided the case itself and

held the appellant liable to indemnify the amount of compensation to the respondents, which is against law.

In the Cross Appeal, respondents have contended that the Presiding Officer has only counted Rs. 3,000/ as income of the deceased of which

1/3rd was allowed to be the personal expenses of the deceased and Rs.3,000/ were counted as income for awarded compensation. According to

the respondent, trial court had erred in not adding Rs. 2,000/ as monthly pension of the deceased. That being so, award has been calculated on

only Rs. 2,000/, which is2/3rd of Rs. 3,000/.

Heard learned counsel for the parties.

Learned counsel for the appellant with all vehemence at his command has urged two points; firstly the appellant was not allowed to adduce the

evidence and to prove the issue. Secondly, he has collected the whole evidence from Hoshiarpur and from the R. T. O. Jammu, from which it

appears that the respondent3 driver was not holding valid license, but was holding a fake license. I have been taken to the trial court file by the

learned counsel for the respondents, who contends that the appellant was given full opportunity to prove issue No. 3, but he has not availed the

opportunity and his evidence was closed. The factual position is that the evidence of the respondents was closed on 24.05.1995 and the present

appellant was given an opportunity to produce evidence. No evidence were produced on 2.8.1995. Evidence of present appellant was closed

despite having been given last opportunity. On 7.8.1995 case was posted for arguments. Then the case has been adjourned to so many hearings

and it is on 12.12.1995 counsel for the respondent No. 1 has filed an application for allowing him to produce the concerned official of District

Transport Officer (Licensing Authority), Hoshiarpur as witness of respondent No. 1. From the bare facts, it is evidently clear that the opportunity

was given to the respondent No. 1, he did not avail it at the proper time and long after he filed an application for allowing him to produce witness.

Though the Presiding Officer should have disposed it of there and then, but it does not mean that the counsel for the appellant had no other remedy

at all to press for his point. He could have easily gone in revision, against the order to the higher forum, even review application has not been filed

by the appellant to review the order of closing evidence. For not passing an order by the Presiding Officer on the application, entire case cannot be

reopened. Counsel for the appellant was in know of the fact that the file is for the final arguments. Matter does not end here. Even if it is accepted

for the sake of arguments that the Driver produced a fake driving license, does it absolve the Insurance Company from the responsibility of

indemnifying the amount of compensation. I considered the point at its depth. It is admitted that the Driver was plying the Vehicle, which caused

the accident. It is accepted that he has produced the driving license to its owner, who handed over the vehicle to him to driver. Now the small

point involved is that if the driver produced the license to its owner, what is the responsibility of the owner and does it absolve the Insurance

Company from this liability. I think even if certificate is accepted to be fake, but it has come only to the forefront when the appellant has made a

through enquiry regarding this Certificate. In the modern times, is it expected from the business class to make such through enquiries before they

handover the vehicle to the Drivers for plying, if the license is produced to them. Once the license is produced, it is duly stamped and signed and

from the face of it, it appears to be sound and owner of the vehicle believes it in the normal course as a genuine certificate, is he bound to make

through enquiries whether the Certificate is genuine or not. I don't think that such exercise is needed. Of course if the owner believes that there is

suspicion about the license, for being fake, it is the boundant duty of the owner to see the matter to be enquired first. So the point in nutshell is that

in case the owner of the vehicle bonafidely believes a license to be a valid license, which in fact turns to be not, so can the Insurance Company

claim exoneration from the liability of indemnifying, I believe No. It can certainly claim the exoneration only, when prima facie, license is to be

doubtful appears to be fake or the owner believes it to be fake even then he hands over the vehicle to the driver, which is not in the present case.

In the present case license is duly numbered, signed and stamped. Prima facie no prudent man can doubt it. That being so, owner of the vehicle has

also bonafidely believed that the license to be genuine. It is the Insurance Company, which after a through probe has come to the conclusion as

alleged that the license is fake. This apart, Insurance Company has failed to prove the issue notwithstanding full opportunity has been given to it to

prove the same. So Insurance Company cannot be allowed to claim the exoneration for indemnifying the compensation.

For these reasons, therefore, the argument of the learned counsel for the appellant is not tenable and the appeal deserves to be dismissed.

Regarding the Cross Appeal, I have gone through the points raised by the respondents. It is a fact that the pension amount has not been added

to the income of Rs. 3,000/ by the Tribunal, but at the same time 1/3rd of personal expenses having deducted from Rs.3,000/ only and the pension

of Rs. 2,000/ have beer left, so l don't think the argument of the learned counsel for the respondents carries much weight. However, if his argument

is that only Rs. 2,000/ for compensation has been calculated from Rs. 3,000/ and the claimants have claimed that due to the death of the victim,

they suffer loss of Rs. 1,000/ from pension. According to them, if Rs. 1,000/ of pension is also added amount from Rs. 1,20,000/ is to be

enhanced to Rs. 1,80,000/. Even if the method of the learned counsel for the respondents is accepted in Cross objections, then the respondents

are entitled to Rs. 12,000/ more. Learned counsel for the appellant also submitted that in case the version of counsel for the appellant is taken to

be true, it is not Rs. 80,000/ but only Rs. 12,000/ are to be enhanced.

For these reasons, therefore, the amount of compensation is enhanced from Rs. 1,20,00 0/ to Rs. 1,32,000/ with the same rate of interest as

has been allowed by the trial court. Cross Appeal is accepted to this extent.