The New India Assurance Co. Ltd v. Mukesh & Ors.

Present: Mr. R.C. Gupta, Advocate for Mr. Pradeep Bedi, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

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

The liability of the Insurance Company in a case of a fake licence or a renewal of a licence which was a fake one have been considered by the Hon'ble Supreme Court in several cases and the decision in National Insurance Company Ltd. Vs. Swaran Singh (2004) 3 SCC 297 and United India Insurance Company Ltd. VS. 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 FAO No.1712 of 1998 -2- no licence at all and hence the insurer shall not be liable.

Driving licnece of respondent No.1 which was on the file of criminal case pending against him could not be treated as forged one merely on the statement of RW-2 Rajinder Parshad. His statement only indicated that there was no entry in the register regarding said licence in favour of Narinder.

The Tribunal, however, reasoned that there may not have been an entry in the register but there ought to have been an application for grant of licence and that details of the application are not produced before the Court. Neither the owner nor the driver examined themselves to explain that there was a valid driving licence or that the owner had made some enquiry on the basis of which he was under the bona fide impression that the driver had a valid driving licence. On the production of evidence by the insurer, the insurer had discharged his onus and in the absence of evidence by the driver and the owner, the finding of the Tribunal that the insurance company had not proved that the driver did not have a driving licence and that the owner was guilty of violation of breach of policy cannot be upheld. The finding of the Tribunal is, thereore, clearly wrong.

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 any way, as specifically provided by the decision of the Hon'ble Supreme Court while dealing with the effect of proviso to Section FAO No.1712 of 1998 -3- 149(4) and Section 149(5) of the Motor Vehicles Act in New India Assurancy Co. Ltd. Vs. 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. July 01, 2010 Pankaj* (K. KANNAN) JUDGE