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Judgment
HEARD learned Counsel and record of the complaint file has been examined by us.
MS. Sharma submitted that accepting everything for the sake of argument against her client without being conceded, still the licence of the driver, Jeewan Kumar, having been proved to be fake in the instant case, its subsequent renewal is meaningless and does not make it valid under law. As such the District Forum below fell into error while allowing the complaint and fastening her client with the liability of Rs. 70,600 along with compensation of Rs. 1,000 for mental pain, agony and inconvenience, as well as interest @ 9% per annum from the date of filing of the complaint i. e. 26. 8. 2004 till payment, in addition to Rs. 1,000 as cost of litigation. Facts have been noted in detail in the impugned order passed by the District Forum, Kangra at Dharamshala, Camp at Dehra, in Complaint No. 349/2004 on 28. 10. 2005. As such those are not being repeated, save and except such facts which are necessary for the disposal of this appeal. Vehicle bearing Registration No. HP-36-1842 being insured with the appellant is admitted. It met with accident on 3. 8. 2003. Jeewan Kumar son of Shri Kanshi Ram was its driver at the time of accident. Claim was repudiated by the Insurance Company vide its letter, Annexure C. 13, on 13. 1. 2004. For ready reference contents of this letter are extracted herein below: "sir. This has reference to the above subject whereby a claim was lodged with us. While scrutinizing the same it has been observed that the licence produced, the driver at the time of accident of Sh. Jeevan Kumar was verified from the concerned issuing office and they have given in writing that the said licence in question been never issued by them. This means that the driver of vehicle at the time of accident was not having valid/effective driving licence. Hence your claim is repudiated as per the requirements of Indian Motor Vehicles Act,1989 as amended till date. This is for your information please".
For getting the genuineness of the licence verified, the Insurance Company had deputed one Er. Rajinder Kumar Sharma, a qualified Surveyor and Loss Assessor as per his affidavit Ex. OPW3 which is at page 155 of the complaint file. He had submitted application, Annexure OP2 to the Registering and Licensing Authority, Bilaspur, for verification of driving licence No. G-46316/93 which was returned in original with the following remarks by the said authority: "r. I. O. with the remarks that D. L. No. G-46316/93 never been issued and does not pertain to the records of this office. "
THE above endorsement of the Registering and Licensing Authority, Bilaspur, clearly goes to show that the driving licence, copy whereof is there on the file as Annexure OP1 filed by the appellant, and Annxure C15 by the respondent was not issued by the Authority concerned. In the face of the endorsement from the concerned Licensing Authority, as well as unrebutted affidavit of Rajinder Kumar Sharma who had been deputed to verify the genuineness of licence in question of Jeewan Ram, we are of the view that the appellant is not liable for payment of the compensation allowed by the District Forum below vide impugned order. Suffice it to say in this behalf that what is initially fake, by its renewal does not become valid as has been observed by the learned District Forum below. In fact the fake licence had no existence in the eyes of law i. e. Motor Vehicles Act, 1988 and the Rules thereunder. In the face of the above material on record, we are of the view that the impugned order passed by the District Forum below cannot be sustained in any circumstances, whatsoever, and is thus liable to be set aside.
IN addition to this, this matter is no more res integra in view of the decision of the Hon''ble Supreme Court in the case of the United India Insurance Co. Ltd. v. Davinder Singh, IV (2007) CPJ 1 (SC)=ix (2007) SLT 235=iv (2007) ACC 705 (SC)=2008 CTJ 11 (SC) (CP) and National Insurance Co. Ltd. v. Laxmi Narain Dhut, III (2007) CPJ 13 (SC)=iv (2007) SLT 102=ii (2007) ACC 28 (SC)= (2007) 3 SCC 700. In the latter judgment, the Hon''ble Supreme Court has specifically held as under: "36. The inevitable conclusion therefore is that the decision in Swaran Sing case has no application to own damage cases. The effect of fake licence has to be considered in the light of what has been stated by this Court in New India Assurance Co. v. Kamla. Once the licence is a fake one the renewal cannot take away the effect of fake licence. It was observed in Kamla case as follows: (SCC P-347, para 12)"12. As a point of law we have no manner of doubt that a fake licence cannot get its forgery outfit stripped off merely on account of some officer renewing the same with or without knowing it to be forged. Section 15 of the Act only empowers any Licensing Authority to ''renew a driving licence issued under the provisions of this Act with effect from the date of its expiry''. No Licensing Authority has the power to renew a fake licence and, therefore, a renewal if at all made cannot transform a fake licence as genuine. Any counterfeit document showing that it contains a purported order of a statutory authority would ever remain counterfeit albeit the fact that other persons including some statutory authorities would have acted on the document unwittingly on the assumption that it is genuine".
As noted above, the conceptual difference between third-party right and own damage cases has to be kept in view. Initially, the burden is on the insurer to prove that the licence was a fake one. Once it is established the natural consequences have to flow.
In view of the above analysis the following situations emerge: 1. The decision in Swaran Singh case has no application to cases other than third-party risks. 2. Where originally the licence was a fake one, renewal cannot cure the inherent fatality. 3. In case of third-party risks the insurer has to indemnify the amount, and if so advised, to recover the same from the insured. 4. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act. The High Court/commission shall now consider the matter afresh in the light of the position in law as delineated above.
The appeals are allowed as aforesaid with no order as to costs".
No other point was urged. In view of the aforesaid discussion, this appeal deserves to be allowed. Ordered accordingly and consequently the impugned order is set aside and the complaint filed by respondent No. 1-Society is hereby dismissed, leaving the parties to bear their own costs. All interim orders passed from time-to-time in this appeal shall stand vacated forthwith. Learned Counsel for the appellant has undertaken to collect the copy of this order from the Reader free of cost and the office shall send copy of the same to the respondent forthwith. Appeal allowed.