KULWANT SINGH Vs. ORIENTAL INSURANCE CO

JUDGEMENT

(1.) THIS order shall dispose of the present appeal filed by the owner of the offending vehicle assailing the impugned award dated 26. 9. 2005 and also the application moved by the appellant under Order 41 Rule 27 read with Section 151 cpc vide CM No. 8711/2006 seeking permission to lead additional evidence. Brief summary of facts relevant for dealing with the contentions raised by the appellant are as under:

(2.) ON 16/3/2003 at about 9:15 am the deceased Sh. Vinod Raturi was going to his house on a two wheeler scooter and reached near Pardesi Papri. At that moment a truck bearing registration no. DL 1gb 3515 driven by its driver in a rash and negligent manner and at a high speed, struck against the said two wheeler. Consequently, Sh. Vinod received fatal injuries. Immediately, he was rushed to the hospital and ultimately he died on 21/3/2002. Ms. Aruna Mehta, counsel appearing for the appellant strongly contended that the appellant duly proved on record the duplicate copy of the driving licence as Ex. R3w2/2 issued by the Licencing Authority, Agra, but ignoring the same, the Tribunal fastened the liability to pay the compensation amount upon the owner of the offending vehicle. Contention raised by the counsel for the appellant is that the said duplicate copy of the driving licence could not be placed by the appellant as the counsel engaged by the appellant remained negligent and did not effectively pursue his case before the Tribunal. Counsel, thus, contended that due to negligence of the counsel appearing before the tribunal, the appellant cannot be made to suffer. Counsel for the appellant also contended that the appellant is entitled to lead additional evidence as envisaged under Order 41 Rule 27 so as to summon the relevant records of licencing Authority, Agra so as to prove that the duplicate attested copy of the driving licence proved by the appellant was a genuine and authentic one. Another contention which has been canvassed by the counsel before this court is that even otherwise the insurance company i. e. the respondent No. 1 failed to prove any breach of terms and conditions on the part of the appellant which could give advantage to the insurance company to claim exoneration from its liability. Counsel also contended that the insurance company also failed to summon the driver and even no records from the Transport Authority, Gauhati were summoned and in the absence of the same, no reliance could be placed on the report of the DTO, Gauhati exhibited as R3w1/4, application of the Investigating officer to the DTO exhibited as R3w1/5, report of the Investigating Officer exhibited as R3w1/6 and the letter forwarding the report of the Investigating officer exhibited as Ex. R3w1/7.

(3.) CONTENTION thus raised by the counsel for the appellant is that the insurance company failed to discharge its burden by not establishing on record that the driver of the offending vehicle had any fake licence or forged licence and consequently the appellant/owner cannot be held liable to pay the compensation amount. Counsel for the appellant placed reliance on the following judgments in support of his contentions: 1. United India Insurance Co. Ltd. vs. Madiga Thappeta Ramakka and ors. ? 1995 acj 358 (Andh. Pra.); 2. Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and Ors. ? 1987 ACJ 411 (SC); 3. Sukh Dev vs. Bhagwati Devi ? 1996 ACJ 1292 (HP) (DB); 4. Narcinva V. Kamat and Anr. Vs. Alfredo Antonio Doe Martins and Ors. ? 1985 acj 397 (SC); 5. United India Insurance Co. Ltd. vs. Lehru and Ors. ? 2003 ACJ 611 (SC); 6. National Insurance Co. Ltd. vs. Bhagwati Devi and Ors. ? IV (2006) ACC 329 (Del); 7. National Insurance Co. Ltd. vs. Ishroo Devi and Ors. ? 1999 ACJ 615 (HP) (DB); 8. United India Insurance Co. Ltd. vs. Raj Rani and Ors. ? 1998 ACJ 175 (Pandh) (DB); and 9. National Insurance Co. Ltd. vs. Swaran Singh and Ors. ? (2004) 3 SCC 297. Refuting the said submissions made by the counsel for the appellant, Mr. J. P. N. Shahi, the counsel appearing for the respondent strongly urged that the tribunal has rightly given recovery rights to the insurance company to recover the award amount from the appellant owner of the offending vehicle as the driver of the offending vehicle was not in possession of the valid driving licence which was fake and fabricated. Counsel also submitted that no reliance can be placed upon the attested duplicate copy of the driving licence as produced by the appellant during his evidence before the Tribunal as the same was never produced by the appellant, earlier. Counsel, thus, sought to urge that the validity and genuineness of such a duplicate copy of the driving licence is totally doubtful and had the same been a genuine driving licence, the appellant ought to have placed it on record at the appropriate stage at least before the commencement of trial and having not done so, the appellant cannot put blame on the insurer of the vehicle in not taking steps to challenge the authenticity of the said driving licence.