The burden of proving negligence on the owner's part in cases of fake driving licences lies with the insurance company.

Pratibha Rani, J.

CM No.10903/2011

1. This is an application moved on behalf of the appellant/insurance seeking permission to place on record additional documents i.e. report dated 09.12.2003 by the Investigator in respect of the driving licence of the driver of the offending vehicle issued by Licencing Authority, Gwalior.

2. Heard learned counsel for the appellant/insurance company.

3. The reason given in the application for not filing the report of the investigator at the relevant time is that since the Licencing Authority which issued the licence of the driver of the offending vehicle is in Gwalior and the investigator is also from Gwalior, steps were taken to get the notice served at Gwarlior but nobody turned up.

4. The award in this case has been passed on 15th February, 2011 i.e. after a period of about eight years from the date of report by the Investigator. This period cannot be termed to be so short as to make the insurance company feel so helpless that witness could not be summoned from Gwalior.

5. The grievance, if any, of the appellant/insurance company about non-appearance of the witness from Gwalior despite service of summons, should have been addressed to the learned Tribunal.

6. The order of the learned Tribunal not granting sufficient opportunity for the above purpose could have been impugned before this Court but no such step was taken. It is also necessary to note that the report was not already placed on record by the insurance company and question of summoning the witness can only be when document has already been filed.

7. In the given circumstances, CM No.10903/2011 is hereby dismissed.

MAC.APP No.512/2011

1. The instant appeal has been preferred by the appellant New India Assurance Company Ltd. impugning the award dated 15th February, 2011 whereby the learned Motor Accident Claim Tribunal has awarded a compensation of Rs.50,031/- to the claimant/injured.

2. The learned Tribunal had not granted recovery rights to the insurance company observing that the FIR has not been lodged by the insurance company against the driver for holding a fake driving licence.

3. The claim petition No.226/2010 was filed by Kanwar Pal claiming compensation for the injuries suffered by him in the accident which occurred on 24.04.1996 at about 3.00 am when truck No.DHG-1201 overturned due to rash and negligent driving of driver Sh.Ram Kishan - respondent No.3 herein. The claimant was a loader on the said truck at the time of accident.

4. Written statement was filed by the appellant/insurance company admitting that the vehicle has been insured but taking the plea that in case the driver of the offending vehicle is found to be not holding a effective and valid driving licence, the insurance company would not be liable to pay the compensation.

5. During course of hearing of this appeal, learned counsel for the appellant/insurance company has submitted that the appellant/insurance company is not challenging the award on quantum of compensation awarded to the injured and restricting the prayer only to the extent of grant of recovery rights.

6. The grievance of the appellant/insurance company is in respect of the observation made in para 11 and 12 of the award wherein verification report in respect of the driving licence of the driver/respondent No.3 herein is referred to by the learned Tribunal to the effect that driving licence was found to be fake.

7. From a bare perusal of the impugned award as well the submissions made by learned counsel for the insurance company, it is clear that no notice under Order XII Rule 8 CPC has been served on the owner/driver of the offending vehicle calling upon them to produce the original driving licence. Further no witness has been examined from the Licensing Authority, Gwarlior to prove that the driving licence was not issued by the said Authority. Even the report of the Investigator has been referred to by R3W1 Sh. Y.R. Malik who has stated that the insurance company has asked the associate office of t