Rameshwar v. Marandi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No. 251 of 2017 Branch Manager, New India Assurance Co. Ltd. Shivam Mansion, Sindri Branch, P.O. Patherdih, P.S. Sindri District- Dhanbad … … (Defendant No.2) … … Appellant 1. Sukurmuni Devi wife of Baneshwar Marandi @ Rameshwar Versus Marandi … … (Claimant/Plaintiff No.1) 2. Baneshwar Marandi @ Rameshwar Marandi son of Late Charan Marandi Both residing at village- Sidhabani Rangamati, P.O.- Sindri, P.S. Baliapur, District – Dhanbad. (Claimant/Plaintiff No.2) … … 3. Lions Public School I/c Bipin Kumar Son of R.D. Sharma Resident of P.O. P.S. Sindri District- Dhanbad. … … … (Defendant No.1) … Respondents With M.A. No. 288 of 2017 Lion's Public School, Sindri, P.O. and P.S. Sindri, District Dhanbad through its Principal, Ramesh Sharma, son of late Ram Govind Sharma, Resident of Qr. No. KD-29, Sindri, P.O. and P.S. Sindri, District Dhanbad. … … Opposite party No.1/Appellant Versus … … Opposite party No.2/Respondent 1. The Branch Manager, The New India Assurance Company Limited, Shivam Mansion, Sindri Branch, P.O. Patherdih, P.S. Sindri, District Dhanbad. 2. Sukurmuni Devi, wife of Sri Baneshwar Marandi @ Rameshwar Marandi, resident of Village Sidhabani Rangamati, P.O. Sindri, P.S. Baliapur, District Dhanbad. 3. Baneshwar Marandi @ Rameshwar Marandi, resident of Village Sidhabani Rangamati, P.O. Sindri, P.S. Baliapur, District Dhanbad. … Claimants/Respondents … --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- In M.A. No. 251 of 2017 For the Appellant For the Resp. Nos. 1 & 2 : Mr. Saibal Kr. Laik, Advocate For the Resp. No. 3 : Mr. Alok Lal, Advocate : Mr. Sumeet Gadodia, Advocate : Ms. Shruti Shekhar, Advocate In M.A. No. 288 of 2017 For the Appellant : Mr. Sumeet Gadodia, Advocate : Ms. Shruti Shekhar, Advocate For the Resp. No.1 For the Resp. Nos. 2 & 3 : Mr. Saibal Kr. Laik, Advocate : Mr. Alok Lal, Advocate --- 21/01.08.2024
Legal Reasoning
Heard the learned counsel for the parties. 2. M.A. No. 251 of 2017 has been filed by the appellant - insurance company challenging the judgment and award dated 13.01.2017 passed by learned District Judge-XVI -cum- Presiding Officer, Motor Accident Claims Tribunal, Dhanbad in Title (M.V.) Suit No. 219 of 2013 to the extent by which the insurance company has been directed to make payment and recover it from the owner of the vehicle. 3. So far as the other miscellaneous appeal being M.A. No. 288 of 2017 is concerned, the same has been filed by the owner of the vehicle involved in the case challenging the aforesaid judgment and award dated 13.01.2017 whereby an ultimate liability has been fastened upon the owner. It is the case of the owner - appellant that the ultimate liability ought to have been fastened upon the insurance company and not on the owner of the vehicle and no right of recovery should have been given. 4.
Legal Reasoning
Learned counsel for the claimants has submitted that the entire claim amount has been satisfied and the fight is between the owner of the vehicle and the insurance company. Argument of the insurance company 5. Learned counsel appearing on behalf of the insurance company has submitted that the licence of the driver was fake for which due investigation was made and the licence itself revealed that the driver was issued licence much prior to attaining the age of 18 years. He has also submitted that apart from the aforesaid, the investigator of the insurance company had visited the office of the licence issuing authority at Kanpur who had informed that the driving licence was not issued by their office and was fake. 6. The learned counsel has further submitted that any renewal of a fake driving licence is of no consequence and therefore, the liability was rightly fastened upon the owner of the vehicle. The learned counsel has submitted that the direction upon the insurance company 2 to pay and recover is itself not in accordance with law particularly when the owner of the vehicle is well-known, identifiable and a solvent party. The owner of the vehicle is the school who is the appellant in M.A. No. 288 of 2017. 7. The learned counsel has thereafter submitted that the insurance company could get the driving licence of the driver from the connected criminal case and the same was exhibited before the learned Court as Exhibit- B. The verification report was marked as Exhibit- B/1. The learned counsel submits that after the accident, the owner of the vehicle had taken certain information from the District Transport Officer, Dhanbad under right to information which was filed as Exhibit-A, but the same is of no consequence as the required due diligence ought to have been shown by the owner of the vehicle at the time of engaging the driver. The accident had taken place on 19.06.2013. He has submitted that on the basis of Annexure-A, it appears that the driving licence was renewed by the office at Dhanbad, but renewal of a fake driving licence is of no consequence. 8. The learned counsel for the insurance company has relied upon the judgment passed by the Hon'ble Supreme Court in the case of "Beli Ram Vs. Rajinder Kumar and others" reported in AIR 2020 SC 4453 to submit that due diligence was required to be done by the owner of the vehicle and in absence of such due diligence, the liability could not have been fastened upon the insurance company even to pay and recover. He has also referred to the judgment passed in the case of "United India Insurance Co. Ltd. Vs. Davinder Singh" reported in (2007) 8 SCC 698 to submit that renewal of fake driving licence does not cure the inherent fatality of the driving licence. 9. On the point of renewal of driving licence, the learned counsel for the insurance company has also relied upon the judgment passed in the case reported in AIR 2001 SC 1419 (New India Assurance Co., Shimla Vs. Kamla and others), to submit that fake/sham driving licence is null and void. 10. The learned counsel has further referred to the judgment passed in the case of "Oriental Insurance Co. Ltd. Vs. Raj Kumari and 3 others" reported in (2007) 12 SCC 768 to submit that there was no material to show that the claimants would have had any difficulty in recovering the amount from the owner of the vehicle and therefore the direction to pay and recover, calls for interference. 11. The learned counsel has also submitted that the owner of the vehicle did not depose before the learned Court and the renewed driving licence of the driver was not produced for consideration. He has further submitted that the date of renewal of driving licence is also not clear from the records, inasmuch as, a copy of the driving licence bearing no. 16180/92/OD was produced which was issued on 09.04.1984 and was valid till 15.04.2016 and as per Exhibit A, it was extended till 10.04.2019, but there is no material to show as to when it was extended. Admittedly, the date of accident was 19.06.2013. Arguments on behalf the owner of the vehicle 12. On the other hand, the learned counsel appearing on behalf of the owner of the vehicle has submitted that the driving licence having been renewed and valid till 10.04.2019, there was no occasion for the owner of the vehicle to question the driving licence and therefore, in view of the judgment passed by the Hon'ble Supreme Court in the case of "National Insurance Company Ltd. Vs. Swaran Singh" reported in (2004) 3 SCC 297 read with the judgment passed by the Hon'ble Supreme Court in the case of "IFFCO Tokio General Insurance Co. Ltd. Vs. Geeta Devi and others" reported in 2023 SCC OnLine SC 1398, there was no occasion for the owner of the vehicle to approach the licence issuing authority and get the licence verified if on the face of the licence it did not demonstrate to be fake. He has submitted that merely because the driving licence was fake per se would not absolve the insurer. 13. The learned counsel has also submitted that the driver of the vehicle was not made party in the proceedings and therefore, there was no occasion for the said driver to produce his driving licence and under such circumstances, appropriate information was sought for from the DTO office at Dhanbad from where the renewal of driving licence was done. The information received from DTO Office at 4 Dhanbad referred to the same driving licence which was exhibited on behalf of the insurance company as Exhibit- B indicating that it was renewed till 10.04.2019. Rejoinder argument on behalf of the insurance company 14. In response, the learned counsel for the insurance company has submitted that date of issuance of the driving licence which was produced as Exhibit - B is 09.04.1984, but it is not clear as to the date on which the said licence was further renewed till 10.04.2019, which the owner of the vehicle is relying upon. 15. The learned counsel has also submitted that the date of birth as mentioned in the driving licence of the driver is 24.06.1967 and the said licence was issued on 09.04.1984 and so far as the driving licence which has been annexed along with the supplementary affidavit filed in M.A. No. 288 of 2017 pursuant to the order passed by this court is concerned, the same has been issued on 09.04.1992 and the date of birth is shown as 24.08.1967. 16. The learned counsel has further submitted that not making driver a party in the proceeding is not fatal as the owner of the vehicle is liable for the accident. Findings of this Court 17. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the bus bearing registration number BIR-3120 was involved in the accident on 19.06.2013. The son of the claimant while returning back home suffered the accident and ultimately, he died on the spot. The offending bus belonged to a school, namely Lion's Public School. 18. Neither the accident nor the involvement of the bus in the accident is in dispute nor the quantum of compensation is under dispute. The identity of the person driving and the owner of the vehicle is also not in dispute. It is further not in dispute that the vehicle involved in the present case was duly insured by the insurance company. However, the driver was not made a party before the learned tribunal and the claimants had made the insurance company and the owner of the vehicle as party defendants. 5 19. The entire arguments before this court are in connection with the validity of the driving licence of the bus driver and the consequences even if his driving licence was later found to be fake. 20. The issues framed by the learned Tribunal are as under: “Issue No. I: Whether this case is maintainable in its present form? Issue No. II : Whether there is a valid cause of action for the present claim case? Issue No. III: Whether the deceased Sanatan Marandi has died in road accident caused by the vehicle bearing registration number BIR – 3120? Issue No. IV: Whether the driver was driving the vehicle in rash and negligent manner at the relevant time? Issue No. V: Whether the driver had valid driving licence at the relevant time? Issue No. VI: Whether the permit of the vehicle was valid at the relevant time? Issue No. VII : Whether the plaintiffs are entitled to any compensation, if so, to what extent and from whom? Issue No. VIII : To what relief or reliefs the plaintiffs are entitled to?” 21. Both the issue no. V and VI were decided against the owner of the offending bus. Thus, as per the finding of the learned tribunal, neither the driver of the bus had a valid driving licence nor the offending bus was having the required permit. 22. While deciding issue no. V, the learned Tribunal recorded that no driving licence of the driver of the vehicle was adduced by the claimants in their evidence and the owner of the vehicle had produced letter no. 1313/Pari., Dhanbad dated 23rd July 2016 issued from the office of District Transport Officer, Dhanbad containing the details of the driving licence of the driver of the vehicle in question which was marked as Exhibit- A. This document was challenged by the insurance company who had produced one witness and who was the person who had investigated regarding the verification of the driving licence no. D-228/KP/1984. A photocopy of the driving licence was produced by this witness which was marked as Exhibit- B (marked with objection) and the report in respect of the same was marked as Exhibit-B/1 by virtue of which the Exhibit- B was a fake driving licence of the driver concerned. The learned Tribunal, while considering these exhibits, has recorded as under: 6 “…Comparing the document of Ext. No.A and Ext. No.B, it pertains to the same person i.e. Jai Prakash Yadav, who is said to have been driver of the vehicle in question at the relevant time. The document of Ext. No. A is a mere letter of District Transport Officer, whereas the document of Ext. No. B is the photocopy of the driving licence itself and of the same Jai Prakash Yadav. Although, Ext. No.B has been marked with objection, but the learned counsel appearing on behalf of the opposite party no.1 could not point out any aspect of valid objection at the time of argument into the matter. Perusing the document of Ext. No.B, it appears that the same was issued from Kanpur Licencing Authority on 09.04.1984, whereas the date of birth of said Jai Prakash Yadav has been written thereon as 24.06.1967, meaning thereby that the said Jai Prakash Yadav was below the age of 18 years at the time of issuance of the said certificate. The same is not possible, as any driving licence is issued to the persons of the age of 18 and above thereto. It further appears that D.W. No.1 namely S.M. Ahmad Rizwi had investigated about the said licence of Jai Prakash Yadav in the office of Kanpur Licencing Authority, where the dealing clerk had demonstrated him that the driving licence in question was a forged one and as such he gave his report to the opposite party no.2 in that regard that the driving licence in question pertaining to Jai Prakash Yadav is a forged one. On the other hand, nothing controverting the same has been adduced into evidence by the opposite party no. 1 The document of Ext. No.A is the letter of D.T.O. Dhanbad in respect of the driving licence of Jai Prakash Yadav. If no driving licence was issued by the Kanpur Licencing Authority to the said Jai Prakash Yadav, any such renewal of any such driving licence of Jai Prakash Yadav shall be illegal. In fact, the initially issued driving licence from Kanpur Licencing Authority is itself not in existence in respect of which D.W.No.1 has given his report that the same was a forged one. Renewal of the driving licence can take place when there is any original driving licence. The report of D.W.No.1 as contained in Ext. No.B/1 discards issuance of any such driving licence to the driver of the vehicle in question namely Jai Prakash Yadav. Had the said driving licence been genuinely issued from Kanpur Licencing Authority, the opposite party no.1 could have adduced its evidence controverting the same. Nothing as such has been done by the opposite party no.1. Hence, it can be safely inferred that Jai Prakash Yadav had no driving licence to drive the vehicle in question, which had caused the accident with the deceased….” 23. From the perusal of the aforesaid discussion by the learned Tribunal, it is apparent that the learned Tribunal was of the view that Exhibit- A produced by the owner of the vehicle and Exhibit- B i.e. the photocopy of the driving licence produced by the insurance company, were of the same person namely, Jay Prakash Yadav who was admittedly the driver of the vehicle and even the driving licence number was the same. The learned Tribunal also recorded that although Exhibit- B was marked with objection, but the counsel appearing on behalf of the owner of the vehicle could not point out 7 any aspect of valid objection with regard to Exhibit-B. Accordingly, the learned Tribunal has taken Exhibit- A as well as Exhibit- B into consideration and recorded that Exhibit- B revealed that the same was issued by the licensing authority at Kanpur on 09.04.1984 and on the same document, the date of birth of the driver has been written as 24.06.1967, meaning thereby at the time of issuance of licence (Exhibit- B) the driver was below 18 years of age and therefore, concluded that the driving licence could not have been issued. The issue no. VI was decided by the learned tribunal against the owner of the offending bus by observing that the insurance company had taken a specific plea with regards to non-availability of permit of the offending bus but the owner did not produce the permit. 24. The point of determination by this court are as under: a) Whether the offending bus had the required permit at the relevant time? b) Whether the driver had valid driving licence at the relevant time? c) Even if the driving licence was fake, could the ultimate liability be fastened upon the owner of the vehicle? d) If the answer to the point no. (b) is in favour of the owner, whether the learned tribunal was justified in directing the insurance company to pay and recover?” Point no. (a) 25. It has also been recorded and upon going through the written statement filed by the insurance company, this Court finds that the insurance company had taken a specific plea in the written statement that the offending bus did not have a permit but neither the claimant nor the owner produced the permit. Before this Court, the owner of the vehicle has taken a stand in paragraph 20 of the memorandum of appeal of M.A. No. 288 of 2017 that the learned Tribunal has erred in law in holding that the vehicle in question was plying in the route without valid permit as no evidence in that regard was led either by the claimant or by the insurance company. This court is of the considered view that once a stand was taken by the insurance company that the offending vehicle did not have the required permit, 8 the evidence to substantiate the existence of permit was required to be led by the owner of the vehicle and not by the claimant or the insurance company. Accordingly, the finding with regards to issue no.VI by the learned tribunal that the offending bus did not have the required permit, does not call for any interference. The point no (a) is accordingly decided against the owner of the vehicle and in favour of the insurance company. Point no. (b) 26. On behalf of the claimants, two witnesses were examined and number of documents were exhibited including the insurance policy. On the other hand, on behalf of the owner of the vehicle, no oral evidence was led and only one document was exhibited bearing letter no. 1313 dated 23.07.2016 issued by District Transport Officer, Dhanbad regarding renewal of driving licence which was marked as Exhibit-A. So far as the insurance company is concerned, one witness was examined as DW-1 and Exhibit – B (marked with objection) was the photocopy of the driving licence of Jay Prakash Yadav- the driver bearing licence No. D-228/KP/1984 and Exhibit B/1 was the copy of the letter dated 11.09.2014 in respect of verification conducted at R.T.O , Kanpur by the witness with regards to driving licence No. D- 228/KP/1984 stating that the driving licence No. D-228/KP/1984 was fake. 27. The specific case of the owner of the vehicle before this Court vide paragraph no. 19 of their memo of appeal is that the insurance company had not examined the dealing clerk of the office of the Kanpur licensing authority and without his examination, the licence issued by the authority at Kanpur was declared to be forged in-spite of the fact that the district transport office at Dhanbad had confirmed the existence of licence in favour of the driver. 28. The sole witness of the insurance company had deposed before the learned tribunal that he was deputed for investigation by the insurance company with respect to driving licence No. D- 228/KP/1984 which was issued on 09.04.1984 by the Licensing Authority at Kanpur. This witness identified the driving licence which 9 was marked as Exhibit - B [with objection]. The witness also proved his report as Exhibit B/1 and stated that the RTO office informed him that the said driving licence was not issued from their office as the code 'D' in the driving licence issued for only those persons whose first name begins with alphabet 'D' and the name of the driver was beginning with alphabet 'J'. This witness deposed that that the said authority stated that the driving licence was a fake one. It was also pointed out to the learned Tribunal that on the face of the licence (exhibit-B) it was fake as the date of birth and the issue date reveals that the driver was less than 18 years of age on the date of issue of exhibit B. The learned tribunal considered the report Exhibit- B/1 and also the driving licence i.e. Exhibit- B and observed that it could be safely inferred that the driver had no driving licence to drive the vehicle in question and ultimately decided the issue, but directed the insurance company to pay the amount with a right to recover the same from the owner of the vehicle. 29. The learned Tribunal rejected the plea of renewal of licence and reference to exhibit -A holding that renewal of driving licence can take place only when there is a valid driving licence and the initial driving licence being invalid the renewal has no relevance. The owner of the vehicle, on the one hand, did not lead any oral evidence and did not even get himself examined and on the other hand, produced the letter no. 1313 dated 23.07.2016 [exhibit-A] received under Right to Information and claimed that the driving licence was renewed and was valid till 10.04.2019. However, from the perusal of the said document, the date of renewal of the driving licence has not been mentioned and the reference of the original driving licence has been made in the said document (exhibit-A) where the licence number is mentioned as 16180/92/OD which tallies with the copy of the licence marked as Exhibit- B and produced by the insurance company. 30. Upon perusal of the driving licence Exhibit - B and as submitted by the learned counsel for the insurance company, on the face of it, it is apparent that it was issued on 09.04.1984 valid till 15.04.2016 in the name of the driver of the vehicle and his father’s 10 name was also mentioned and further the date of birth of the driver was mentioned as 24th of June 1967. The Exhibit A dated 23.07.2016 produced by the owner of the vehicle revealed that the driving licence was issued to the driver in the year 1986 and the validity was extended till 10.04.2019 bearing licence no. 16180/92/OD but the date of renewal of licence was not mentioned. 31. When the present appeals were taken up on 14.02.2020, it was submitted that the driver has been acquitted in the criminal case and time was sought to bring the order of acquittal but the order of acquittal of the driver has not been filed. 32. When the case was taken up on 17.01.2024, it was submitted by the learned appearing on behalf of the owner of the vehicle that he has received the photocopy of driving licence of the driver and he wanted to file the same through supplementary affidavit for which ten days’ time was sought for. Accordingly, a supplementary affidavit was filed annexing a notarized copy of the driving licence upon perusal of which it appears that the driving licence number is JH10 19920166728 and the date of issue is 09th April 1992; it was valid till 04th June 2022 for transport vehicle and till 04th June 2024 for non-transport vehicle and the date of birth of the driver has been shown as 24th August 1967. The driving licence as produced by the owner of the vehicle through the aforesaid supplementary affidavit does not tally with the details as mentioned in Exhibit-A produced by the owner of the vehicle before the learned Tribunal. The original date of issuance of driving licence as per Exhibit- A is 1986 and the original date of issuance of driving licence as per the licence annexed with the supplementary affidavit has been mentioned as 09th April 1992. In view of the aforesaid circumstances, the case of the owner of the vehicle based on Exhibit- A when compared with the driving licence as produced through supplementary affidavit does not tally and the documents are self- contradictory. Accordingly, no reliance can be placed by the owner of the offending vehicle on the licence produced through supplementary affidavit. 11 33. The learned Tribunal on the basis of materials on record held that the driver of the offending vehicle was not having the required driving licence on the date of accident and his driving licence (exhibit- B) was fake. This court finds that the learned tribunal has given sound reasons to hold that the driving licence of the driver was fake and the driving licence produced through supplementary affidavit is also not reliable for the reasons cited above. This Court finds no reasons to interfere with the finding of the learned Tribunal that the driving licence of the driver of the offending vehicle was fake. The point no.(b) is accordingly decided against the owner of the vehicle and in favour of the insurance company. Point no (c) 34. Having held as above, it has to be seen as to whether the insurance company could be held to be ultimately liable to pay the insurance claim to the claimants. 35. It has been argued by the learned counsel for the owner of the vehicle that in view of the judgment passed by the Hon'ble Supreme Court in the case of "National Insurance Company Ltd. Vs. Swaran Singh" reported in (2004) 3 SCC 297 read with the judgment passed by the Hon'ble Supreme Court in the case of "IFFCO Tokio General Insurance Co. Ltd. Vs. Geeta Devi and others" reported in 2023 SCC OnLine SC 1398 , there was no occasion for the owner of the vehicle to approach the licensing authority and get the licence verified if on the face of the licence it did not demonstrate to be fake. He has submitted that merely because the driving licence was fake per se would not absolve the insurer. The argument is that even if the licence was fake, the liability could not be fastened upon the owner as it is not expected from the owner of the vehicle to approach the licensing authority and get the licence verified. 36. The fact remains that the Exhibit B on the face of it not only discloses the date of birth of the driver but also the date of issuance of the original driving licence. On the face of the driving licence at Exhibit B which on the face of it is issued on 09.04.1984 and the date of birth mentioned on it is 24.06.1967, it is apparent that the age of the 12 driver was less than 18 years at the time of issuance of the said driving licence and the same was valid till 15.04.2016. There was no occasion for the driver to produce a renewed driving licence before the owner at the time of his engagement as the accident had taken place in the year 2013. The Exhibit-A dated 23.07.2016 has been produced by the owner to demonstrate renewal of driving licence valid till 10.04.2019, but it does not reveal the date of renewal of the driving licence. 37. This court finds that the driving licence which has been marked as Exhibit – B, on the face of it indicates that the driving licence was issued to the driver at about 16 years of age, and it could certainly be demonstrated on the face of the driving licence that it was fake. The owner of the vehicle having not examined himself before the court and having not led any evidence of due diligence and as the driving licence was fake on the face of it, the owner of the vehicle cannot take any plea of innocence to fasten the liability upon the insurance company. 38. In the judgment passed by the Hon'ble Supreme Court in the case of IFFCO Tokio General Insurance Co. Ltd. (Supra), it has been held in paragraphs 12, 14, 15 and 16 that the mere fact that the driving licence was fake, per se, would not absolve the insurer. It has also been held that once a seemingly valid driving licence is produced by a person employed to drive a vehicle, unless such licence is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the licence has already expired, or there is some other reason to entertain a genuine doubt as to its validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving licence before employing that person to drive the vehicle. The said paragraphs are quoted as under:- “12. Thereafter, in National Insurance Co. Ltd. v. Swaran Singh, a 3-Judge Bench of this Court dealt with the interpretation of Section 149 of the Act of 1988. The cases before the Bench involved, amongst others, instances where the driving licence produced by the driver or owner of the vehicle was a fake one. The Bench noted that Section 149(2)(a) opened 13 with the words: ‘that there has been a breach of a specified condition of the policy’, which would imply that the insurer's defence of the action would depend upon the terms of the policy. It was observed that an insurance company which wished to avoid its liability is not only required to show that the conditions laid down in Section 149 (2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. Such a breach on the part of the insured must be established by the insurer to show that the insured used or caused or permitted to be used the insured vehicle in breach of the provisions. The Bench went on to state that where the insurer, relying upon the violation of law by the assured, takes exception to pay the assured or a third party, it must prove a willful violation of the law by the assured. Noting that the proposition of law is no longer res integra that the person who alleges breach must prove the same, the Bench observed that an insurance company would be required to establish the said breach by cogent evidence and in the event an insurance company fails to prove that there has been breach of the conditions of the policy on the part of the insured, such an insurance company cannot be absolved of its liability. 13… 14. More recently, in Ram Chandra Singh v. Rajaram, the issue before this Court was whether an insurance company could be absolved of liability on the ground that the insured vehicle was being driven by a person who did not have a valid driving licence at the time of the accident. This Court found that no attempt was made to ascertain whether the owner was aware of the fake driving licence possessed by the driver and held that it is only if the owner was aware of the fact that the licence was fake but still permitted such driver to drive the vehicle that the insurer would stand absolved. It was unequivocally held that the mere fact that the driving licence was fake, per se, would not absolve the insurer. 15. Applying the aforestated edicts to the case on hand, it may be noted that the petitioner-insurance company did not even raise the plea that the owner of the vehicle allowed Ujay Pal to drive the vehicle knowing that his licence was fake. Its stand was that the accident had occurred due to the negligence of the victim himself. Further, the insurance policy did not require the vehicle owner to undertake verification of the driving licence of the driver of the vehicle by getting the same confirmed with the RTO. Therefore, the claim of the petitioner-insurance company that it has the right to recover the compensation from the owners of the vehicle, owing to a willful breach of the condition 14 of the insurance policy, viz., to ensure that the vehicle was driven by a licenced driver, is without pleading and proof. 16. As already pointed out supra, once a seemingly valid driving licence is produced by a person employed to drive a vehicle, unless such licence is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the licence has already expired, or there is some other reason to entertain a genuine doubt as to its validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving licence before employing that person to drive the vehicle. Presently, no evidence has been placed on record whereby an inference could be drawn that the deceased vehicle owner ought to have gotten verified Ujay Pal's driving licence. Therefore, it was for the petitioner-insurance company to prove willful breach on the part of the said vehicle owner. As no such exercise was undertaken, the petitioner-insurance company would have no right to recover the compensation amount from the present owners of the vehicle. The impugned order passed by the Delhi High Court holding to that effect, therefore, does not brook interference either on facts or in law.” (emphasis supplied) In the aforesaid judgment, the judgment passed in the case of Swaran Singh (Supra) has also been considered. 39. In view of the aforesaid judgement, it has to be examined as to whether the licence of the driver was demonstrably fake on the face of it, warranting the owner to make inquiries as to its genuineness, and to see as to whether there was a failure on the part of the vehicle owner in carrying out due diligence with regards to the driving licence of the driver before employing him to drive the vehicle. 40. This court finds that the licence of the driver (exhibit-B) on the fact of it revealed that it was issued to a person less than 18 years of age and thus on the face of the driving licence it could have been possible to come to a conclusion that the licence was fake. Considering the totality of facts and circumstances of this case and in view of the judgment passed by the Hon'ble Supreme Court in the case of IFFCO Tokio General Insurance Co. Ltd. (Supra), the licence which was available with the driver on the date of accident on the face of it demonstrated that it was fake and therefore, the owner of the 15 vehicle cannot take any advantage of the fact that the vehicle was duly insured. The driving licence on the face of it having been found fake, the policy of the insurance was violated and therefore, the insurance company cannot be held to be ultimately liable so far as the payment to the claimants is concerned. 41. In view of the aforesaid findings, the point no (c) is also decided against the owner of the vehicle and in favour of the insurance company. 42. This is over and above the fact as discussed above that there is a clear finding by the learned tribunal to which this court has refused to interfere while deciding point no (a) that the offending bus did not have the permit; the insurance company raised such a plea but the permit was never produced by the owner of the offending vehicle. Point no. (d) 43. So far as the point no (d) is concerned, the same has been rendered merely academic as the claimants have already received by the awarded amount as stated by the learned counsel for the claimant. Otherwise also the law is well settled that the tribunal can pass direction to the insurance company to pay and realize when the insurance is not in dispute. The point no (d) is decided as such. 44. In view of the aforesaid findings, the appeal filed by the owner of the vehicle being M.A. No. 288 of 2017 is hereby dismissed. 45. So far as the appeal filed by the insurance company being M.A. No. 251 of 2017 is concerned, the amount has already been paid by the insurance company to the claimants and it will certainly be open to the insurance company to recover the amount from the owner of the vehicle. 46. Consequently, the judgment and award dated 13.01.2017 passed by learned District Judge-XVI -cum- Presiding Officer, Motor Accident Claims Tribunal, Dhanbad in Title (M.V.) Suit No. 219 of
Decision
2013 is upheld. 47. M.A. No. 251 of 2017 is accordingly disposed of. 48. The statutory amount deposited in both the appeals is directed to be remitted to the concerned tribunal and if the entire amount has 16 already been paid to the claimants, the same be remitted to the insurance company. 49. 50. Let Pending interlocutory application, if any, is closed. the Records received from the learned Court be immediately sent back to the Court concerned. Pankaj (Anubha Rawat Choudhary, J.) 17