NATIONAL INSURANCE COMPANY LTD Vs. BALVIR KAUR

JUDGEMENT

(1.) The insurance company is on appeal challenging the liability cast on the insurer for the consequences of motor accident that had resulted in determination of compensation as payable to the claimants. The insurance company would plead that the driving licence produced was a forged one and a witness from the DTO's office has given evidence to the effect that the licence with the particular licence number, which had been produced, was not really issued to the driver, who was driving the insured's vehicle involved in the accident. Learned Senior Counsel would contend that even in the cross-examination of the driver, it was elicited that he had himself not known the name of the DTO's office and that he had secured licence through an agent from Kapurthala. The licence showed that it had been issued at the DTO's office at Amritsar and therefore, with a positive evidence emerging from the DTO's office that the licence was not issued to the driver, it was clear that the document relied on by the driver was not a genuine document. As far as the entitlement of the owner to be indemnified was concerned, the insurer is bound to prove that there had been breach of condition of terms of policy by the insured himself. In this case, the insured had given evidence that he had seen the licence and satisfied to himself that the licence had been issued in his name before he engaged his services and therefore, he had not committed any breach. The learned Senior Counsel for the insurance company would contend that he ought to have vouched for its genuineness and mere satisfaction on seeing the driving licence could not be sufficient. I may not be able to allow this argument from the insurance company for an owner could not have usually gone beyond asking for the production of licence and seen that the licence was purported to have been issued in the name of the driver. That, in my view, would be sufficient and it will be unnatural for any owner to be going actually to the DTO's office or engage the DTO in any private communication whether particular licence had been issued in the name of the person or not. If the owner had sought for the production of driving licence from a driver and he noticed that the driving licence as produced was at least on its face shown to be issued in the name of the driver, that would be sufficient to hold that he had not committed any deliberate breach of terms of the policy. If only the owner had participated in the fraud with the driver in securing a fabricated licence or it had turned out that the driver never had any driving licence then it can be stated that the owner had committed willful breach to be saddled with the whole liability and denied the right of reimbursement. I will not find the owner in any event negligent.

(2.) What is stated of the owner cannot be stated of the driver, who on his self-confessed statement had secured a licence through an agent at Kapurthala, for a licence which was said to have been issued at Amritsar. It ought to have been known that he was bargaining for a licence in a way which was against the provisions of the law. He had literally purchased a licence and he could not be said to be a person who was duly licenced. Learned counsel appearing for the driver would contend that he had been well versed in driving for several number of years and he was himself made to be believe that he had a valid driving licence through an agent. Agents and touts abound in DTO's office for various things but if we must stretch the practice to the extent of legitimizing the agent also to be an issuing authority for grant licence, then the very purpose of a procedure for issuance of a licence could be violated with impunity. I cannot allow such a contention to be taken before the Court and I will find that the driver was guilty of driving a vehicle without a valid licence and the insurance company ought to therefore have a right of recovery against the driver. It appears that the driver was also punished in the Criminal Court for the offence of negligent driving.

(3.) As far as the claimant is concerned, he cannot come to any harm, for he has a right of enforcement of the award against the insurance company. The insurance company, however, will have a right of recovery not against the insured but against the driver for driving of vehicle without a valid driving licence. The driver invariably is a principal tort feasor and the liability is always joint and several. The right to shift the liability to his owner by the operation of vicarious liability would obtain in a situation where he had a valid driving licence. If he did not have a valid driving licence then the right of recovery should be made available for the insurance company. The appeal by the insurance company is allowed to the limited extent of making possible a right of recovery against the driver, who had been responsible for causing the accident. The appeal is allowed to the above extent.