Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.313 of 2016 (From the judgment dated 19th February, 2016 passed by the learned Addl. District Judge-cum-Judge IIIrd M.A.C.T., Bargarh, in M.A.C. No.34/80 of 2013-15) Rajani Bag and others …. Appellants -versus- Padmalochan Sandha and another …. Respondents Advocate(s) appeared in this case:- For Appellants
Legal Reasoning
: Mr.P.K.Misha, Advocate For Respondents : Mr.N.C.Mishra, Advocate For Respondent No.2 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 21st September, 2023 B.P. Routray, J. 1. Present appeal by the claimants is directed against the judgment dated 19th February 2016 passed by learned Addl. District Judge-cum-Judge IIIrd M.A.C.T., Bargarh, in M.A.C. No.34/80 of MACA No.313 of 2016 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 2013-15, wherein compensation to the tune of Rs.8,00,000/- has been granted along with simple interest @7.5% per annum from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident dated 4th April 2013. 2. The Tribunal, while directing payment for compensation, has exempted the insurer from liability by observing that the accused driver had a fake driving license. 3. The facts of the case are that, the deceased, a man aged about 35 years, while going in his bicycle on 4th April 2013, the offending motorcycle bearing registration no.OR-17K-4912 dashed against him resulting sustenance of head injury. The deceased succumbed to such injury on the next date while undergoing treatment in the hospital. The offending motorcycle was driven by one Prafulla Chhuria, a friend of the owner, at the time of accident. The police during investigation seized the copy of driving license bearing no.OR- 17-20100033830 standing in the name of said Prafulla Chhuria. The owner also submitted in his written statement about possession of valid driving license by said Prafulla Chhuria as well as valid insurance policy of the offending motorcycle at the time of accident. The validity of insurance policy was not disputed by the insurer, i.e. National MACA No.313 of 2016 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 Insurance Co. Ltd. But in course of evidence, the copy of same driving license seized by the police was produced under Ext.A by the insurer to disclose that the same was in the name of one Barun Tandi. The insurer thus contended that, since the driver did not have a valid driving license, it is not liable to indemnify the owner. 4. The Tribunal finding the driving license of the accused driver, namely Prafulla Chhuria as a fake one has absolved the Insurance Company from indemnifying the compensation amount stating violation of the policy conditions by the owner. Admittedly, the insurer did not examine any witness on its behalf to bring anything about knowledge of the owner regarding such fake license possessed by the Prafulla Chhuria. The owner has stated that said Prafulla Chhuria being his friend took the motorcycle from him and further contends in good faith that he had a valid driving license. The Insurer did not adduce any evidence to dispute competency of said Prafulla Chhuria in driving the motorcycle and could not brought any such material on record to disclose anything that the owner had deliberately given his motorcycle to Prafulla Chhuria having knowledge of possession of invalid driving license by him. The police upon investigation have also submitted the charge-sheet stating Prafulla MACA No.313 of 2016 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 Chhuria had valid driving license. In other words, until copy of the DL under Ext.A was produced by the insurer, no one had knowledge of possession of fake driving license by Prafulla Chhuria. 5. The principles regarding non-possession of driving license or possession of fake driving license have been discussed in several decisions of the Hon’ble Supreme Court. In National Insurance Co. Ltd. vrs. Swaran Singh and others, 2004 (3) SCC 297 and Nirmala Kothari vrs. United India Insurance Co. Ltd., 2020 (4) SCC 49, the principles have been settled that the insurer has the onus to prove that the owner of the vehicle was guilty of negligence, and it is enough on the part of the owner to satisfy himself that the driver is competent to drive the vehicle and has a driving license that looks genuine on the face of it. 6. Further, in the case of Lal Chand vrs. Oriental Insurance Co. Ltd., 2006 AIR SCW 4832, the Hon’ble Supreme Court has observed that mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant point of time, are not in themselves defences available to the insurer against the insured or third parties. The relevant observation is reproduced below:- MACA No.313 of 2016 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 “11. As observed in the above paragraph, the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time” 7. In Rishipal Singh vrs. New India Assurance Co. Ltd. (Civil Appeal No.4919 of 2022 decided on 26th July, 2022), the Hon’ble Supreme Court have held as follows:- “10. The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver. 11. In view of the said finding, the order passed by the High Court affirming the order of the Tribunal is set aside. Hence, liberty is given to the insurance company to recover the amount from the appellant is also set aside. Consequently, the appeal is allowed.” 8. In the instant case, in absence of materials regarding knowledge of the owner about fake license of the driver, the Insurer cannot get rid of its liability to indemnify the owner. As per the principles propounded in Rishipal Singh (supra), the insurer is also not entitled to any right of recovery in his favour. Thus, it is concluded MACA No.313 of 2016 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 that, it is the insurer (Respondent No.2) to pay the compensation amount by indemnifying the owner. 9. The claimants submit for enhancement of compensation amount by addition of future prospects to the income of the deceased and further to grant adequate amount towards general damages including consortium. 10. Such contentions of the claimants to enhance compensation are found justified since the Tribunal has failed to add the same while determining compensation amount. Accordingly, taking same income of Rs.5,000/- per month, as determined by the Tribunal, the loss of dependency with addition of future prospects to the extent of 40% is recomputed to Rs.10,08,000/-. Adding Rs.30,000/- towards loss of estate and funeral expenses, and further Rs.1,50,000/- towards consortium to the widow and minor children, the total compensation is re-determined Rs.11,88,000/-, payable along with interest @6% per annum. 11.
Decision
In the result, the appeal is disposed of with a direction to Insurer-Respondent No.2 to deposit the modified compensation amount of Rs.11,88,000/- (Eleven lakhs eighty eight thousand) before the MACA No.313 of 2016 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Oct-2023 17:13:20 Tribunal along with interest @6% per annum from the date of filing of the claim application within a period of three months from today; where-after the same shall be disbursed in favour of the claimants on such terms and proportion to be fixed by the Tribunal. (B.P. Routray) Judge C.R.Biswal/Secy. MACA No.313 of 2016 Page 7 of 7