New India Assurance Company Limited v. Mubina & Ors.

CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.C.Gupta, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? To be referred to the reporters or not ?

Whether the judgment should be reported in the digest ? K.Kannan, J. (Oral) ----

1. The Insurance Company is in appeal against the judgment of the MACT against the liability cast on it, in spite of the fact that the driver who drove the vehicle was proved to have had a fake driving licence.

2. The liability of the Insurance Company in a case of a fake licence or a renewal of licence of a licence which was a fake one have been considered by the Hon'ble Supreme Court in several cases and the decisions in National Insurance Company Versus Swaran Singh- (2004) 3 SCC 297 and United India Insurance Versus Divinder Singh- (2007) 8 SCC 342, are instructive. In the latter judgment, it has been held that a renewal of a fake driving licence is no licence at all and hence the insurer shall not be liable. FAO No.2215 of 1997 - 2 -

3. The Tribunal has take note of the following:- “The Insurance Company-respondent No.3 took plea that since Kuldeep-respondent No.1 was not holding a valid driving licence at the time of alleged accident and he was not driving the vehicle during the course of his employment under the insured. It is not liable to pay any compensation. The onus to prove this issue was on the Insurance Company. The Insurance Company produced Sh. Bhanu Kumar, Assistant, Motor Registering and Licensing Authority, Mandi Sadar, Himachal Pradesh, who appearing as RW1 made statement that the driving licence bearing No.K- 7145/1987 dated 13.5.1987 copy of which is Mark 'A' was not issued by the Licensing Authority, Mandi Sadar. He further testified that as per the relevant register, no such driving licence was issued on 13.5.1987. He further stated that after 11.5.1987 the next driving licence was issued on

18.05.1987 and that there is no serial number 7145 in the register brought by him for the period 6.5.1987 to

23.9.1988.”

However, it has reasoned that the driving licence could have been issued from any other place in Himachal Pradesh or in India. When the driving licence produced by the driver was prove to be not genuine, it cannot be expected that the insurer could conjecture where else it could have been issued from. The reasoning is wholly untenable. FAO No.2215 of 1997 - 3 -

The owner has not given any evidence to contradict the evidence let in by the Insurance Company.

The owner has remained ex parte and no evidence is available about his bonafides of enquiry regarding the possession of driving licence by the driver before its entrustment to him. Consequently, the insured shall not have the benefit of indemnity under the policy.

Even if the Insurance Company is not liable, the duty to satisfy the award for the claimants cannot be doubted. In such a situation, the liability to satisfy the award will be accompanied with a right of recovery from the owner/insured. This cannot be doubted in anyway, as specifically provided by the decision of the Hon'ble Supreme Court while dealing with the effect of proviso to Section 149(4) and Section 149(5) of the M.V. Act in New India Assurance Company Versus Kamla-(2001) 4 SCC 342.

Under the circumstances, the Insurance Company shall not be liable to indemnify the insured. The liability is to satisfy the claim under the award with a right of recovery against the insured. The award of the Tribunal is modified and the appeal allowed to the above extent.

01.07.2010 sanjeev (K.KANNAN) JUDGE