Dismissed

New India Assurance Company v. Pawan Vikrant

Himachal Pradesh HC16 Dec 2022FAO/359/2016

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed the insurer's appeal against an MTMC award. The court held that the insurer failed to prove the driver's licence was fake, as the Local Commissioner's report was based on incorrect case details and the witness was not cross-examined before the parties, violating procedural justice. The Tribunal's finding that the licence was genuine was upheld.

What did the court decide?

No relief; the appeal against the tribunal's award was dismissed. The liability of the appellant insurer to indemnify the insured was upheld.

New India Assurance Company Vs Pawan Vikrant — Motor Accident Claims | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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FAO No. 359 of 2016 Decided on: 16.12.2022 New India Assurance Company .…Appellant Versus Pawan Vikrant & Ors. … Respondents.

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Coram

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The Hon’ble Ms. Justice Jyotsna Rewal Dua , Judge.

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Whether approved for reporting?¹

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For the petitioner: Mr. Praneet Gupta, Advocate. For the respondents: Mr. Devender Sharma, Advocate vice Mr. C.N. Singh, Advocate for respondent No.1. Mr. Varun Chauhan, Advocate, for respondent Nos.2 and 3.

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Jyotsna Rewal Dua, J

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The insurer has taken exception to the award passed on 01.04.2016 by the learned Motor Accidents Claims Tribunal, (learned Tribunal hereinafter), wherein the liability to pay the compensation amount was fastened upon it.

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2. Facts:

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2(i) Respondent No.1 instituted a claim petition under

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Section 166 of the Motor Vehicles Act, 1988 on 03.11.2010. His case

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was that he was travelling in a Bolero Camper vehicle bearing registration No.HP-30-1752, owned by respondent No.2. Respondent

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1 Whether reporters of the local papers may be allowed to see the judgment?

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No.3 (Ghanshyam @ Bittu) was driving the vehicle rashly and negligently in a high speed, as a result of which, it rolled on the road causing multiple injuries and fractures to the claimant. Compensation of Rs. 15,00,000/- was claimed by him. Vide its award dated 01.04.2016, learned Tribunal held the claimant entitled for compensation of Rs.6,03,000/-.

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2(ii) The offending vehicle was held to be duly insured with the appellant-insurance company w.e.f. 7.10.2009 to 06.10.2010. The accident had occurred on 16.4.2010 i.e. within the duration of the valid insurance. Learned Tribunal also held that the driver of the vehicle had a valid & effective driving licence at the time of accident. The liability to pay the compensation amount was fastened upon the insurance company. It is in this background, the insurer has come up in the instant appeal.

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3. Learned counsel for the insurer/appellant submits that the findings of the learned Tribunal that respondent No.3 was in possession of valid driving licence is de-hors the evidence available on record. That respondent No.3 did not possess a valid and legal driving licence. The Local Commissioner appointed by the learned Tribunal in its report had clearly stated that the driving licence produced by respondent No.3 was fake. Hence, the insurer could not have been held liable to indemnify the insured.

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Learned counsel for respondents No.2 and 3 defended the findings of the learned Tribunal that the driving licence placed on record was not proved to be fake. Hence, the insurance company cannot avoid its responsibility to indemnify the insured.

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4. Learned counsel for the parties have made submissions only on the point of validity of driving licence of respondent No.3. Having heard learned counsel on both sides at length and after going through the record, in my considered view, the driving licence produced by respondent No.3 cannot be termed as fake. This is for the following reasons:-

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4(i) The appellant-insurance company in its reply to the claim petition took up a preliminary objection that the driver of the vehicle at the relevant time was not in possession of a valid and effective driving licence to drive the vehicle in question.

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4(ii) On 23.07.2011, an application was moved on behalf of the insurance company under order 11 Rule 12 of the Code of Civil Procedure seeking direction to the claimant, owner and driver for supplying the documents mentioned therein. One of the documents sought for was the driving licence of respondent No.3 (Ghanshyam). Learned counsel appearing for respondent Nos.1 and 2 (owner and driver) tendered in evidence certain documents on 03.06.2015 including the copy of driving licence of respondent No.3.

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4(iii) The appellant/insurer did not lead any evidence in support of its contentions. Learned Motor Accident Claims Tribunal closed the evidence of appellant on 29.6.2015.

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4(iv) On 4.7.2015, the insurer moved an application for appointment of the commissioner for verification of the driving licence No.11/20/AG/06 dated 30.05.2006 produced by respondent No.3. This application was allowed on 20.08.2015 by the learned Tribunal. Local Commissioner was appointed to examine the concerned officials from the office of R&LA, Agra U.P. with respect to the validity/genuineness of the driving licence in question. He was directed to examine the record as per the reference. The Local Commissioner was to visit the office of R&LA, Agra after properly informing learned counsel for the parties.

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4(v) The Local Commissioner entered upon the reference. He sent communication through post to learned counsel for the parties indicating therein that he would be visiting office of R&LA, Agra U.P. from 19^th November to 21^st November 2015. On 4.12.2015, the Local Commissioner submitted his report to the learned Tribunal.

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The Local Commissioner concluded in his report that “the details and particulars of Driving Licence No.11120/AG/2006 dated 30.05.2005 placed on record in the Court file of the MAC No. 71-s/21 of 14/10 titled Pawan Vikarant Vs. Ms. Neena & Others shown to have been issued in favour of Sh. Ghanshyam Sharma, S/o

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Sh. Prem Lal, do not match with the original record of the Driving Licence No.11120/AG/2006 office of the RTO/R&LA, Agra U.P. which has been genuinely issued in favour of one Sh. Lalu Singh Chauhan, S/o Sh. B.S. Chauhan, R/o VPO Saiyana, Agra U.P.”

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4(vi) Relying upon the report of Local Commissioner, learned counsel for the appellant contended that the driving licence of respondent No.3 was fake. Hence, the insurer could not be saddled with the liability to indemnify the insured.

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Learned counsel for respondents No.2 and 3 submitted that the Local Commissioner had given altogether different particulars regarding the case number, title of the case as well as number of driving licence in his communication dated 16.11.2015. Learned counsel also highlighted the fact that in the communication dated 16.11.2015, the Local Commissioner had intimated the date of his visit to the office of R&LA Agra U.P. from 19^th November to 21^st November 2015, whereas examination of R&LA Agra placed on record alongwith report by the Local Commissioner makes it evident that the Local Commissioner had actually visited the office of R&LA Agra on 24.11.2015. That the owner & the driver were denied the opportunity to cross-examine the official of R&LA Agra, examined by the Local Commissioner. Learned counsel, therefore, submitted that on the basis of report of the Local Commissioner the driving licence of respondent No.3 cannot be discarded as fake.

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4(vii) Learned Tribunal while discussing Issue No.5 concerning the validity of the driving licence has observed that neither any notice was issued to the claimant by the learned Commissioner nor any cross-examination was conducted on behalf of the claimant on the witness Sh. Bhanu Pratap Singh working as Junior Assistant in the office of RTO/R&LA Agra UP. The testimony of this witness without having been cross-examined cannot be taken into consideration. In absence of any cogent proof, it cannot be said that the driving licence is fake or not genuine.

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On scrutiny of the documents, I am inclined to agree with the submission advanced by learned counsel for respondents No.2 and 3. The documents on record though prove that the Local Commissioner did issue a notice to the learned counsel for the claimant and respondents No.2 and 3 on 16.11.2015, however, the number and title of the case given in the notice do not tally with that of present case. The date given to the learned counsel for the parties for the visit of Local Commissioner to the office of R&LA Agra UP was from 19^th November to 21^st November 2015. But, the report alongwith its enclosures reflects that the Local Commissioner actually visited the office on 24.11.2015. The officer of R&LA Agra was thus examined by the Local Commissioner without giving proper opportunity to the claimant & respondents No.1 and 2 to cross examine the witness.

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Though in view of law laid down by the Hon’ble Apex

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Court in 1995 Supp (4) SCC 600 ( Misrilal Ramratan and others Vs. A.S. Shaik Fathimal & Others), the report of the Commissioner is part of the record and therefore the report cannot be overlooked or rejected on spacious plea of non-examination of the Commissioner as a witness since it is part of the record of the case. However, in the instant case, the record does not show that copy of the report of the Local Commissioner was even supplied to respondents No.1 to 3. Notices issued to the learned counsel for the respondents by the Local Commissioner before proceeding to the office of R&LA, Agra, UP showed the particulars, which did not pertain to the instant case. The number of case mentioned therein was different. The title of the case was not of the instant case. The number of driving licence given in the notice, which the Local Commissioner was to examine was also not the one involved in the instant case. The Local Commissioner visited the office on a date different than the date given by him in the notices sent to the learned counsel for the respondents. The respondents were denied the opportunity to crossexamine the witness examined by the Local Commissioner. The Local Commissioner’s examination of the witness & the report, therefore, could not be relied upon to hold that the driving licence of respondent No.3 was fake.

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No other point was urged.

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For the aforesaid reasons, I do not find any infirmity with the findings of the learned Motor Accident Claims Tribunal, (IV) Shimla, H.P. with respect to the validity of the driving licence of respondent No.3 and imposition of liability upon the appellant to indemnify the insured. Accordingly, the instant appeal is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.

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Jyotsna Rewal Dua Judge

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16^th December 2022 (Rohit)

New India Assurance Company v. Pawan Vikrant

Case brief

What is this about?

What did the court decide?

New India Assurance Company v. Pawan Vikrant

Case brief

What is this about?

What did the court decide?

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