United India Insurance Co. Limited vs Sri Changa Lal and Another

S.S. Chauhan, J.—Through this First Appeal From Order the judgment and award dated 11.10.2004 passed by the Motor Accident Claims Tribunal, Lucknow in Claim Petition No. 329 of 2001 and the order dated 18.3.2005 passed in Review Petition No. 20 of 2004 have been challenged.

The facts in brief relating the present dispute are that on 11.2.2001 when the claimant was going on to sell the cream on Vikram Tempo near the Bijli Pasi Port the said Tempo met with an accident and was hit by Truck No. UP 32/A8252 and the Tempo turned turtle on account of which the claimant received fracture in his left leg and thy and serious injuries on the body. Thereafter, he was taken to Balram Hospital, where he was admitted for fifteen days. An F.I.R. in respect of the said incident was lodged under Sections 279/337/338/427 I.P.C. Thereafter, the claimant filed claim petition before the Tribunal claiming compensation. Awadh Ram, owner of the Truck was the opposite party No. 1 before the Tribunal and notice was served upon him, but in spite of service he did not turn up to contest the proceedings. The age of the claimant was 25 years at the time of accident and it was claimed by the claimant that he was earning Rs. 4,000/- p.m. and his working was decreased on account of the accident and hence he was entitled for compensation. The Insurance Company filed written statement and denied the claim of the claimant. Thereafter, issues were framed and after framing of issues, the liability of the Insurance Company was found to be established and accordingly the impugned award was passed. Hence this appeal.

Submission of learned Counsel for the appellant is that on an enquiry it was found that the licence possessed by the truck driver was found to be fake and in this regard a certificate was obtained from the office of the R.T.O., Cuttack, State of Orissa and from the said certificate it is established that the licence held by the truck driver was fake. The submission, therefore, is that since the licence of the truck driver was found to be fake, the liability of the Insurance Company cannot be established and is not made out. In support of her contention, she has placed reliance upon the following cases:

Oriental Insurance Co. Ltd. Vs. Fida Ali and Others, National Insurance Co. Ltd. Vs. Brij Pal Singh and Another, National Insurance Co. Ltd. Vs. Kusum Rai and Others, and National Insurance Co. Ltd. Vs. Kaushalaya Devi and Others,

Counsel for the respondent No. 1 has not been able to deny the arguments of counsel for the appellant and has submitted that it was for the truck owner to come forward to contest the claim and place the relevant facts if they were otherwise available to him.

I have heard learned Counsel for the parties and gone through the record.

It is settled law of the apex Court by catena of decisions that if the liability of the owner of the vehicle is established the Insurance Company should be made to pay the amount with the right to recover the same from the owner of the vehicle. Looking to the fact that the licence held by the driver was fake, the liability cannot be fastened upon the Insurance Company and it is the liability of the owner, who deputed such a driver to drive the vehicle, who was having a fake driving licence.

Since all the proceedings have been got decided ex-parte and the owner of the truck has not turned up in spite of the fact that service was affected upon him, the impugned award is modified to the extent that the Insurance Company will pay the amount to the claimant and will be at liberty to realise the same from the owner. The claimant will be entitled to withdraw the rest of the amount, which has been deposited in this Court.

Subject to above noted terms, the appeal is partly allowed.