The High Court · 2010

Present: Mr. Ravinder Arora, 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, 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. X.O. No.53-CII of 1998 in FAO No.1725 of 1998 -2- 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.

In the written statement, respondent No.3 has taken plea that the respondent No.1 was not having a valid driving licence at the time of accident. Respondent No.3 tendered in evidence report of the Licensing Authority, Dehradun Ex.R2 which shows that driving licence bearing No.M-1835/82 dated 13.07.1982 was not issued by the Licensing Authority, Motor Vehicle Department, Dehradun. Report shows that driving licence in the name of Mukhtiar Singh bearing No.M-1835/82 is a fake driving licence.

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. The Tribunal, however, held that even if there was no valid driving licence, the insurance company would be liable. While the insurance company could still be made liable, the Tribunal ought to have on its own finding provided for a right of recovery against the insured.

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 X.O. No.53-CII of 1998 in FAO No.1725 of 1998 -3- Supreme Court while dealing with the effect of proviso to Section 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.

There is a cross objection for enhancement of compensation but there is no representation for the respondent at the time when the matter is called. I still examine the order to find that the claimant had been admitted in a hospital for a period of 18 days and he had suffered a fracture in the right leg. The claimant had not produced any medical bills or any other vouchers for expenses but still the Tribunal took note of the fact that the claimant would have spent Rs.6,000/- for treatment towards medical expenses and provided Rs.1,000/- for transport to medical college and for pain and suffering it provided Rs.8,000/-. He had also provided for Rs.9,000/- towards special diet charges. The Tribunal took note of the fact that the claimant was an employee with the Haryana Roadways but nothing had been brought on record to the effect that he had any loss of salary during the said period, which he could have definitely established if only the claimant had not joined duty and he had suffered any loss of salary during that period. The Tribunal has considered all the relevant facts and I see no scope for X.O. No.53-CII of 1998 in FAO No.1725 of 1998 -4- modifying the award in any way.

The cross objection is dismissed. There shall be, however, no direction as to costs. July 01, 2010 Pankaj* (K. KANNAN) JUDGE