Heard Sri Amarjeet Singh Rakhra, learned counsel for appellant, Sri Inderpreet Singh Chadh, learned counsel appearing on behalf of Insurance Company,Sri Shashank K. Singh, learned counsel appearing on behalf of claimants/respondent Nos. 1 to 5 and perused the record.
Factual matrix of the present case are that on 24.04.2009 one Sri Adarsh Kumar Tiwari, while he was returning back from his petrol pump to his house at Ataria a Maruti Van having registration No. U.P. 25G/8281 due to rash and negligent driving of his driver dashed Sri Adarsh Kumar Tiwari, as a result of which he has sustained grievous injury, taken into the medical college, Lucknow where the doctor after examining him declared as death. In the matter in question, an FIR was lodged as Apradh Sankhya 291/2009 under Section 279, 304A, 427 I.PC.. in Thana- Ataria District - Sitapur.
In view of the said factual background, the claim petition no. 161 of 2009 has been filed by the claimants in order to claim compensation arising out of the accident in question, Sri Vipin Kumr Sharm and the New India Assurance Company Ltd. have been impleaded as opposite parties.
The Tribunal by means of the judgment and award dated 30.11.2010 has allowed the claim petition thereby awarding compensation of Rs. 4,17,000/- with 6% simple interest from the date of filing of the claim petition, under challenge in the present appeal.
Sri Amarjeet Singh Rakhra, learned counsel for appellant while challenging the impugned judgment submits that the Tribunal has erred in holding that the driver of the Maruti Van does not possess valid licence at the time of accident, the said fact is incorrect as at the relevant time he possess valid driving licence No. S18373 issued by the Regional Transport Authority, Barelli, U.P. in this regard placed reliance on the photocopy of the said licence and Form No. 54 issued under Rule 150(a) & (2) of the Motor Vehicle Rules/ Accident Information Report. So the finding given by Tribunal at the time of accident , the licence of the driver is a fake one, is an incorrect and wrong finding perverse and contrary to material on record, as such at the time of accident the vehicle is insured with the Insurance Company/New India Assurance Company Ltd., owner of the vehicle is not responsible to pay compensation. In support of his argument, placed the judgment given by the Apex Court in the case of Pepsu Road Transport Corporation v. National Insurance Company, (2013) 10 S.C.C. 217, relevant paragraph on which the reliance has been placed by learned counsel for appellant are quoted as under:-
" In United India Insurance Company Limited vs. Lehru and Others[1], a two-Judge Bench of this Court has taken the view that the insurance company cannot be permitted to avoid its liability only on the ground that the person driving the vehicle at the time of accident was not duly licensed. It was further held that the wilful breach of the conditions of the policy should be established. Still further it was held that it was not expected of the employer to verify the genuineness of a driving licence from the issuing authority at the time of employment. The employer needs to only test the capacity of the driver and if after such test, he has been appointed, there cannot be any liability on the employer. The situation would be different when the employer was told that the driving licence of its employee is fake or false and yet the employer not taking appropriate action to get the same duly verified from the issuing authority. We may extract the relevant paragraphs from the judgment:
18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen in order to avoid liability under this provision it must be shown that there is a "breach". As held in Skandia and Sohan Lal Passi cases the breach must be on part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the Insurance Company disown liability? The answer has to be an emphatic "No". To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of the person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom, has made insurance, at least third party insurance, compulsory. The aim and purpose being that an insurance company would be available to pay. The business of the company is insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases viz that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured.
20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia, Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see no reason to take a different view.
In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhâ€(TM)s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation."
Accordingly, learned counsel for appellant submits that at the time of engaging the driver, the owner cannot be expected to go to verify the licence of the driver is genuinonly he has to see that the driver has got a valid driving licence. The said act has been done in the present case as at the time of engaging of the driver, the owner/appellant has seen his driving licence and has no knowledge that the licence possessed by him is a fake one, even otherwise in the present case at the time of the accident the driver of the vehicle has got a valid driving licence No. S 18373 issued which is evident from the Form 54 issued by the competent authority as per Rule 150(a) and (2) of the Motor Vehicle Rules, so there is no justification or reason on the part of Tribunal to hold that the driver of the vehicle does not possess a valid driving licence rather it is a fake one at the time of accident, as such the impugned judgment given by the Tribunal is contrary to the facts of the present case, liable to be set aside.
Sri Inderpreet Chadha, learned counsel appearing on behalf of the Insurance Company while supporting the judgment passed by the Tribunal submits that in the present case, it is not in dispute that the vehicle in question was insured with the Insurance company, however after the accident which took place on 24.04.2009, the owner of the vehicle on 12.05.2009 has filed the claim in order to get compensation in respect to the vehicle (which has been damaged ) in a prescribed format i.e. "Motor Claim Form" and attached the relevant docuemtn in support of the claim, one of the document is the licence of the driver (licence No. S7949 )issued by the Regional Transport Office, Bareilly, U.P. In order to consider the claim of the claimant/owner of the vehicle, necessary verification/information has been sought from the Regional Transport Authority, Bareilly and the said authority submitted a report that the licence submitted by the owner of the vehicle is a fake one, not issued by the Regional Transport Department, Bareilly.
He further submits that taking into consideration the said report given by the licensing authority, Motor Vehicle Department, Bareilly, U.P. in respect to licence as well as document verification report dated 25.05.2009 submitted by Surveyor, a decision was taken that the claim/damages should be repudiated/not paid due to fake driving licence. Accordingly, a show cause notice dated 10.07.2009 has b