1. The Insurance company has come up in appeal against the judgment and award dated 15.12.2006 passed by Motor Accident Claims Tribunal/Addl. District Judge, Pratapgarh.
2. The record and proceedings was summoned and are properly scrutinized by the Court. I have perused the evidence more particularly of the owner namely DW-1 and also of DW-2. At the outset, the Insurance company has felt aggrieved by the judgment whereby they have been directed to indemnify the owner of the vehicle though the driver of the vehicle was not having valid and effective licence to drive the vehicle which he was driving. It is submitted that the judgment and award dated 15.12.2006 passed by the court below is not only erroneous but is misconceived based on the misreading of the facts and circumstances of the case. The judgment, according to counsel for the appellant, is perverse as it is based on presumption and not on the evidence which was led before it.
3. Learned Counsel has emphasized the provision of Section 3 of the Motor Vehicles Act, 1988, mainly that no person can drive the motor vehicle in public place unless he holds an effective valid driving licence, issued by the competent licencing authority. A further submission is that the Tribunal ignored the fact that the driver of the vehicle involved in the accident did not have a valid and effective licence to drive the vehicle at the time of accident as the same is supported by Form 54 and the evidence of DW-2, who is a Clerk in Road Transport Organization.
4. Learned Counsel for the appellant has even submitted that there is fundamental breach of policy conditions and, therefore, they are not liable to pay any compensation to the claimants. It is submitted that once the Tribunal hold that the licence was not a valid licence, the appellant was supposed to be given the benefit under Section 149 of the Motor Vehicles Act, 1988.
5. It has been lastly submitted that on the other count also, the learned Tribunal has committed manifest error and has not even bothered to considered the fact that the driver of the vehicle in question was having the licence to drive the light motor vehicle only, whereas the vehicle involved in the accident was Tractor, which is a commercial vehicle and there was specific breach of the terms and conditions of the policy.
6. I would deal with the second aspect first that the vehicle in question was a Tractor and not a light motor vehicle. The said issue has been set at rest in the judgment of Sant Lal Vs. Rajesh & others, AIR 2017 SC 4054 and, therefore, to submit that the Tractor is not a light motor vehicle cannot be countenanced and the said submission being devoid of merits is rejected.
7. As there is no challenge to the accident having taken place, the policy being invoked at the time of accident, the compensation awarded, I do not delve into the said aspect of the judgment and, therefore, the factual data are not mentioned while discussing the main submission of the counsel that the licence was fake and they could not have been mulcted with the liability.
8. Learned counsel for the appellant has relied on the Apex Court judgment in the case of National Insurance Co. Ltd. Vs. Geeta Bhat and others, 2008 (2) TAC 385 (SC) and has submitted that the Insurance company even if it is made liable, the Insurance company should be given recovery rights.
9. As against this, the learned counsel for the owner Sri J.K. Shukla appearing for the owner and driver has taken this Court to the deposition of the owner and the judgment of the Apex Court in Lal Chand Vs. Oriental Insurance Company Limited, 2006 (3) TAC 321, on which reliance has been placed by the Tribunal and the later judgment of the Division Bench of this Court in National Insurance Company Limited, Lucknow Vs. Smt. Sahidul Nisa and others, 2013 (1) AICC 744.
10. To decide the case, the factual scenario will have to be analyzed first. It is admitted position of fact that it was proved that driving licence was not issued by the RTO authority from whom it was said to have been issued. This is proved by the oral testimony of DW-2 but the matter does not end there and it was not after thought of DW-1 because he stepped into the witness box much before the RTO was called and he has deposed on oath that he has checked the licence of the driver. The driver was driving his vehicle for about 3 years prior to the accident having taken place. He has no reason to doubt the veracity of the licence and he has taken all precaution to hand over his Tractor to a person, who had objected before him that he had licence.
11. this is the clinching issue and the Insurance company has failed to prove the tests laid down by the Apex Court in Lal Chandra (supra) and National Insurance company (supra) even in the judgement of Geeta Bhat it has been held in paragraph no.7 that an owner of the vehicle is bound to make reasonable inquiry. In United India Insurance Co. Ltd. Vs. Lehru & others, (2003) 3 SCC 338, wherein third party risk, vis-vis possession of a fake licence by a driver who had been employed bona fide by the owner thereof had come up for consideration before this Court and, therefore, I do not think that much elaborate reasoning are required to be given in this case. In this case, the owner have taken a proper care and caution. He cannot be held liable. The Insurance company has been properly held liable to discharge his contractual obligation of indemnify the owner.
12. As the total amount has already been awarded pursuant to the order of this Court, no further order is required in that regard. However, the claimant shall be entitled to entire amount.
13. The appeal fails and is dismissed. The record and proceedings be sent back to the Tribunal. On receiving the process of this Court, the Tribunal shall disburse the amount after encashing the Fixed Deposit.
Order Date :- 29.8.2018 Irshad