NATIONAL INSURANCE CO LTD Vs. SANTOSH DEVI

JUDGEMENT

(1.) BY way of the present appeal appellant insurance company seeks to challenge the impugned award dated 12. 03. 2003. The main grievance of the appellant is that the appellant has not been given recovery rights to recover the award amount from the owner of the offending vehicle, although, it was proved on record that the driver of the offending vehicle was not holding any driving license on the relevant date of accident.

(2.) THE brief summary of the facts relevant for proper appraisal of the contentions raised by the parties are as under:-On 2. 9. 1993 at about 8:15pm, Shri Raj Kumar was driving a tanker bearing registration no. DEL-966 in a rash and negligent manner and hit Shri baljeet Singh, who was riding a bycycle near S-Block Chowk, Mongol Puri. As a result thereof Shri Baljeet Singh died. Mr. M. B. Agarwal, advocate appearing for the appellant contended that the learned tribunal over looked the deposition of RW1 Shri Sher Singh and rw2 Shri M. R. Verma, who in their respective statements proved on record that the driver of the offending vehicle was not holding any valid and effective driving license. Inviting my attention to the testimony of RW2 Shri M. R. Verma from the office of Registering and Licensing Authority, Una, Himachal Pradesh, the counsel contended that the said witness in his deposition clearly stated that no driving license bearing no. R/0371 was issued in the name of Raj Kumar. Counsel thus contended that the tribunal has wrongly observed that the appellant insurance company failed to discharge the onus by not proving the fact that driver of the offending vehicle was not holding valid driving license. The counsel further sought to urge that besides the said witness, Shri Sher Singh, rw1, Adminitrative Officer of the appellant insurance company also proved on record investigator report, exhibit RW1/7, wherein, it is clearly shown that the license in question was never issued by the Licensing Authority, Una in favour of the driver of the offending vehicle. The counsel further submitted that even notice requisite under Order 12 Rule 8 CPC was served upon the owner and driver of the offending vehicle to produce the license and therefore, the appellant insurance company fully discharged its onus to prove on record that the driver of the offending vehicle was not in possession of any valid driving license.

(3.) PER contra, Mr. R. K. Kohli, counsel for the respondent No. 5 contended that the appellant insurance company failed to discharge the onus to prove on record that the driver, of the offending vehicle had a fake or invalid driving license, at the time of driving the offending vehicle. The counsel vehemently refuted the contentions raised by the counsel for the appellant that the recovery rights should be granted to the appellant insurance company. The counsel also urged that the award does not require any interference. I have heard learned counsel for the parties and perused the record. It is no more res integra that onus is on the insurance company to prove that the driver was not holding a valid driving licence. In this regard the hon'ble Apex Court observed as under in Narcinva V. Kamat v. Alfredo Antonio Doe martins, (1985) 2 SCC 574: