Heard learned counsel for the appellant.
This F.A.F.O. is directed against the award dated 16.06.2011 given by M.A.C.T./A.D.J., Court No.4, Bulandshahr in M.A.C. No.112 of 2009 Gyan Chand and others Vs. Surendra Kumar and others. The claim petition was filed for compensation in respect of injuries suffered by Km. Babita applicant no.3, respondent no.5 in this appeal who was 4 years at the time of accident. The parents were also applicant nos.1 and 2 in the claim petition, they are respondent nos.3 and 4 in this F.A.F.O. The claim was made for Rs.30,00,000/- however it was allowed for Rs.75,000/-, the 10% of the said amount was to be paid in cash and remaining 90% was to be paid in the form of 10 years F.D.R. with some Nationalised Bank in the name of Km. Babita. The liability to pay compensation was fastened only upon, the appellants who are owner and driver of the offending vehicle. Prem Pal, appellant no.2 driver was initially impleaded as respondent no.2 in this appeal. However, an application was filed for his transposition as appellant no.2, which has been allowed today, hence he is appellant no.2 in this F.A.F.O.
The insurance company-respondent no.1 was completely absolved of the liability to pay the compensation even though the offending vehicle was insured with it, on the ground that driving licence of the driver-appellant no.2 was fake. A Photo copy of the licence was filed, containing the name of the appellant no.2 Prem Pal. However, from the records of the R.T.O. and from the evidence of an official of the said department it was proved that the licence was issued in the name of Naresh Kumar son of Yadram.
The main argument of the learned counsel for the appellant is that in case of fake licence owner is not liable to pay compensation for the death or the injuries caused in an accident with his vehicle, if the vehicle is insured, unless it is proved that the owner was aware that the licence of the driver was fake. In this regard two authorities have been cited by the learned counsel for the appellant, one is reported in National Insurance Company Limited Vs. Gulam Nabi Zargar 2010(1) T.A.C. 840 (J & K). The other is reported in Ramesh Singh Vs. Subhash Singh 2008(4) T.A.C. 661 (M.P.). In the first authority, reliance has been placed upon leading authority of the Supreme Court reported in National Insurance Company Limited Vs. Soran Singh A.I.R. 2004 S.C. 1531. Reference to Prem Kumari Vs. Prahlad Dev A.I.R. 2008 S.C. 1073 has also been made in the said authority of Jammu & Kashmir High Court.
The ratio of the above cases is not applicable to the facts of the instant case for the following reasons:-
1. Original driving licence was not filed.
2. Driver himself is appellant no.2 along with owner of the vehicle appellant no.1 in this appeal.
3. Vehicle owner-appellant no.1 did not examine himself as witness hence it was not proved that he was aware of fake licence of the driver.
The assertion that the owner was not aware of fake licence of the driver can be proved only and only by the owner. Unless owner asserts that he was not aware of the fact that the licence of the driver was fake and states the said fact in his oral statement, he cannot argue that the liability to pay compensation must be fastened on the insurance company.
In the entire judgment of the Tribunal below, there is no mention that this point was argued by the learned counsel for the owner-appellant no.1.
No other point has been argued by the learned counsel for the appellant.
The appeal is, therefore, devoid of any merit and is dismissed under Order 41 Rule 11 CPC.
The amount of Rs.25,000/- deposited along with this appeal shall at once be remitted to the Tribunal below for immediate payment to the claimant-respondent as per direction given in the impugned award and the same shall be deducted from the liability of the appellants under the impugned award.
Order Date :- 8.9.2011 Vks Hon'ble Sibghat Ullah Khan,J.
Allowed.
Let respondent no.2 Prem Pal be transposed as appellant no.2 in the memorandum of F.A.F.O.
Order Date :- 8.9.2011 Vks