HDFC General Insurance Company Limited vs Manharbhai Chhotabhai Kachiya

Heard learned Advocate Mr.Rathin P. Raval for the appellant. Learned Advocate Mr.N.A. Bhalodi appears for respondent No.1 on instructions and therefore, Registry shall accept his Vakalatnama. Perused the record.

The appellant herein is original respondent No.3 in Motor Accident Claims Petition No.559 of 2013 (old M.A.C.P. No.253 of 2009) before the Motor Accident Claims Tribunal of District Bharuch at Ankleshwar. Such claim petition was preferred by respondent No.1 herein being injured victim of road accident against driver, owner and insurer of the vehicle involved in the accident. The appellant herein is insurer of such vehicle, whereas respondent Nos.2 and 3 are respectively driver and owner of such vehicle.

It is undisputed fact that on 17th February, 2009, when the respondent No.1 - original claimant was walking on road near Palsana Village the respondent No.2 has dashed his Tempo No.GJ-05-UU-973 because of his rash and negligent driving. In such vehicular accident, victim has received several injuries on his left hand, leg, chest and face. Because of such injuries, he has to take treatment for longtime, but even after the treatment he suffered 20% permanent disability for the entire body. Therefore, the petitioner in all has claimed Rs.4,50,000/- as compensation under Section 166 of the Motor Vehicles Act, 1988. After allowing all the parties to adduce their evidence, the Tribunal has by impugned judgment and award dated 6th April, 2018 awarded an amount of Rs.2,32,000/- with 9% interest to be paid by all the respondents jointly and severally to the claimant.

Being aggrieved by such award directing the appellant to reimburse the owner of the vehicle in question, the appellant has preferred this appeal mainly on the ground that since there was a breach of policy condition whereby the driver of the vehicle was not holding driving license at the relevant time and copy of driving license produced by the claimant on record was fake, they should not be liable to pay the compensation.

So far as driver and owner of the vehicle are concerned, being opponent Nos.1 and 2 before the Tribunal, they remained absent even before the Tribunal though notice was served upon them and therefore, this appeal can be decided even in their absence relying upon the decision of Hon'ble Supreme Court in the case of A.Robert Vs. United India Insurance Co. Ltd. reported in AIR 1999 SC 2977 read with Order 41 Rule 14(4) of the C.P.C.

In support of their claim, the insurance company has relied upon the copy of the license produced by the claimant at Mark - 6/5 = Exhibit 59 contending that such copy of the license shows the license number as 887 of 2003 and as if it is issued by District Transport Officer, Saran. It is further submitted that when appellant have verified the correctness of such license from the office of the District Transport Officer, Saran, they have received a letter dated 20.03.2015, xerox copy of which is produced at Mark 53/1 = Exhibit 60, disclosing that license number 887/03 is issued in the name of one Rajesh Rai son of Ram Kishan Rai and not in the name of opponent No.1 the person who was driving the vehicle namely Kushesh Murlidhar Tiwari. Therefore, it is submitted that the license produced on record is fake and thereby it is to be presumed that the opponent No.1 driver was not holding valid license at all and thereby insurance company should not be held liable to indemnify the owner, because driving the vehicle without holding the driving license is a clear breach of policy condition.

I have perused all the documents including copy of chargesheet (Exhibit 32); deposition of officer of appellant (Exhibit 58) so also copy of license (Exhibit 59) and letter from District Transport Officer, Saran (Exhibit 60). However, perusal of all such documents together makes it clear that appellant has failed to prove their contention that license in question is fake. It is evident from chargesheet that there is no charges for driving a vehicle without holding a valid driving license. It is admitted position that insurance company has never complained to the police that driver was not holding license or that he has produced fake license before the police. So far as letter by District Transport Officer, Saran is concerned, the witness of the appellant namely Alpeshbhai Mahendrabhai Patel has categorically admitted that he is producing xerox copy of such document only and original has been lost. In view of such situation, it would be the duty of the appellant to call for the witness from the office of the District Transport Officer, Saran to prove the contents of the letter. It is also evident from the deposition that witness has to admit that he has no personal knowledge that opponent No.2 owner of the vehicle had knowledge about fake license by opponent No.1 and even after such knowledge he had allowed him to drive the vehicle. He has also admitted that claimant is third party to the insurance company, but denied that for such cases, there was avoiding clause in the policy which confirms that in such cases insurance company has to pay the amount of compensation to the claimants.

However, I do not find any substance in appeal on any such ground for following reasons: -

8.1 The appellant insurance company has failed to prove the contents of Exhibit 59 and Exhibit 60 by appropriate mode i.e. calling a witness from the office of District Transport Officer, Saran with original record to confirm relevant information, more particularly, when such evidence is pertaining to the license of opponent No.1 and when opponent No.1 was not present before the Tribunal in such proceedings. The witness of the appellant has to categorically confirm that he is not certain that whether opponent No.2 was aware that opponent No.1 was not holding driving license at all or that copy of driving license (Exhibit 59) is a fake license. It is undisputed fact that victim was third party to the insurance company.

In view of above position, a reference is required to be made to the decision of Larger Bench of Hon'ble Supreme Court of India between Singh Ram Vs. Nirmala and others reported in 2018 (3) SCC 800. In such cited case Hon'ble Supreme Court has categorically followed the principle laid down by it in the case of National Insurance Co. Ltd. Vs. Swaran Singh reported in 2004 (3) SCC 297 and confirmed that even in such cases principle of pay and recover would apply whereby insurance company shall pay the amount of compensation and then it may recover it from the owner.

Therefore, when insurance company has failed beyond reasonable doubt to confirm that driver of the vehicle was holding fake driving license and thereby there is a breach of policy condition, at the most there may be an order of pay and recover. In view of such situation, the appeal is partly allowed whereby it is made clear that since there is contention that driving license produced on record is fake and when insurance company has tried to prove it, it would be appropriate to modify the award with a direction that in the given case insurance company may recover the amount of compensation from the driver and owner by appropriate proceeding in accordance with law. Otherwise, there is not substance in the appeal so as to restrict the direction against the appellant to pay the amount of compensation to the injured claimant.

Therefore, appeal is disposed of with above clarification and direction.

In view of disposal of main matter, connected Civil Application does not survive and hence, the same is disposed of accordingly.