Oriental Insurance Co. Ltd. vs Chhotelal Sao @ Ramdhan Sao & Others

Heard, learned counsel for the appellant, Mrs. Rita Kumari. Learned counsel for the appellant has submitted that the Insurance Company has

preferred this appeal against the Award dated 19.04.2014 passed by learned District Judge-cum-Additional Claim Tribunal-II, Chatra in Claim Case

No. 20/2011, whereby the claimants namely, (i) Chhotelal Sao @ Ramdhan Sao, son of Barho Sao, (ii) Pratima Kumar, minor daughter of Chhotelal

Sao, (iii) Raj Kumar Sao and (iv) Bavi Kumar, both minor sons of Chhotelal Sao represented through their father Chhotelal Sao, have been awarded a

compensation to the tune of Rs. 6,47,000/- - Rs. 50,000/- (which has been paid under Section 140 of M.V. Act) = Rs. 5,97,000/- within one month

from the date of order, failing which Oriental Insurance Company (O.P. No.2) has to pay simple interest @ 7% per annum from the date of institution

of the case till the date of realization with condition that part of the compensation amount be deposited in the account of minor children.

Learned counsel for the appellant has assailed the impugned award on the ground that the learned Tribunal has wrongly held that the driver of the

offending vehicle has proper and valid license as the offending bus bearing registration no. JH-01E-6423 insured before the appellant - the Oriental

Insurance Company Ltd. Ranchi.

Learned counsel for the appellant has placed the finding at para-8 of the impugned judgment and has assailed the impugned award on the ground that

the offending vehicle was driven by Md. Allauddin, whose driving license has been brought on record as Exhibit-X/2 bearing No. A/P-1157/03 Chatra

and 3399/F 90 Hazaribag. The license was renewed from D.T.O., Chatra. However, Exhibit-A filed by the appellant - Insurance Company, a letter

written by the Branch Manager to the learned Advocate of Insurance Company, that the driver of the offending vehicle namely, Sri Allaudin was

possessing fake license and driving license was verified from Cuttak, Orissa, which have been brought on record as Exhibit-Y & Y/1.

Learned counsel for the appellant has thus submitted that the appellant - Oriental Insurance Company Limited cannot be fastened with the liability in

view of Section 149 (2) of the Motor Vehicles Act., but learned Tribunal has fastened the appellant - Insurance Company without considering the

aforesaid documents.

Learned counsel for the respondent no. 5 / owner of the offending Vehicle, Mr. Ashutosh Anand has placed reliance on the same paragraph and has

submitted that both the documents have not been proved on record properly as per the law laid down by the Hon'ble Apex Court in the case of Iyapan

Vs. M/s United India Insurance Company and others reported in JBCJ 2013 (03) 305 (SC).

Learned counsel for the respondent no. 5 has also relied upon the judgment of Hon'ble Apex Court passed in the case of Nirmala Kothari Vs. United

India Insurance Co. Ltd. reported in 2020 (4) SCC 49. Para-12 & 13 of the aforesaid judgment are profitably quoted hereunder:-

While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the fact of it

looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the

employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach

of Section 148(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the

insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able

to prove that the owner / insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance

company would no longer continue to be liable.

On facts, in the instant case, the Appellant/complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence.

The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the

concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the

Respondent / Insurance Company that the Appellant / complainant is guilty of willful negligence while employing the driver. The driver had been

driving competently and there was no reason for the Appellant / complainant to doubt the veracity of the driver's licence.

Learned counsel for the respondent no. 5 / owner has thus submitted that in absence of any contrary evidence brought and proved in accordance with

law, the impugned order fixing liability upon the appellant cannot be shifted upon the owner.

Learned counsel for the respondent no. 5 / owner has further submitted that the recent judgment passed by the Apex Court in the case of Nirmala

Kothari also absolve the owner from such responsibilities nor it is the contention of the appellant-Insurance Company that the owner is guilty of willful

negligence while employing the driver.

Under the aforesaid circumstances, the appeal may be dismissed.

Learned counsel for the respondent nos. 1 to 4 / claimants, Mr. Vijay Kumar Sharma, has submitted that the entire amount along with interest as

passed by the learned Tribunal has already been indemnified to the claimants.

Considering the rival submissions, looking into facts and circumstances of the case, the ground taken by the appellant- Insurance Company that the

driving licence of the driver of the offending vehicle was not valid, is not acceptable to the court for two reasons; firstly, the Insurance Company has

not brought on record any evidence to substantiate the same and secondly, in view of the judgment of the Hon'ble Apex Court passed in the case of

Nirmala Kothari (Supra), the Insurace Company has to prove that there was willful negligence by the owner of the vehicle while employing the driver.

In absence of these two grounds, the impugned judgment does not require any interference.

Accordingly, the instant miscellaneous appeal is dismissed. The statutory amount deposited by the appellant shall be returned to the appellant by the

Registrar General of this Court within a period of four weeks from the date of filing of the requisition as the awarded amount has already been

indemnified by the Insurance Company.

I.A. No. 6777/2014 filed for condonation of delay of 145 days in filing the instant appeal and I.A. No. 8414/2016 filed for stay of Misc. (Execution)

Case No. 21/2016 are also dismissed as the appeal has already been dismissed on merits.