IMPORTANT POINT
The insurer's liability under the Motor Vehicles Act is contingent upon proving that the driver was unlicensed and that the vehicle owner was aware of this fact; mere allegations of a fake license do not suffice to absolve the insurer of liability.

JUDGMENT :

Heard Mr S Roy, learned counsel appearing for the appellant/Insurance Company and Mr A T Sarkar, learned counsel for the respondents.

2. This appeal is directed under Section 173 of the Motor Vehicles Act, 1988, against the Judgment and Order dated 03.12.2016, passed by the learned Member, MACT, Kamrup, Guwahati, in MAC Case No. 79/2015, by awarding a compensation amounting to Rs. 7,99,000/-(Rupees Seven Lacs Ninety Nine Thousand) only in favour of the respondents/claimants.

3. The factum of accident has not been challenged in the case. Learned counsel for the Insurance Company has argued that the owner/driver of the offending vehicle at the relevant time of accident was not having valid driving licence in his name. The Insurance Company adduced evidence of one Debojit Borkotoky, who in his evidence stated that the driving licence was in the name of one Sahidul Islam and not in the name of Amar Biswas, the driver of the offending vehicle. The said witness exhibited the letter of DTO, Nalbari, but the learned Tribunal did not consider the same and came to an erroneous finding that the appellant has failed to prove that the owner/driver had not possessed valid driving licence at the relevant time of accident, in his name and as such, the impugned Judgment and Award is liable to be set aside.

4. In support of his submission, learned counsel for the appellant has placed reliance on the following case-laws:-

1. (2008) 3 SCC 193; (Prem Kumari & Ors. –Vs- Prahlad Deb & Ors.)

2) (GHC) MAC Appeal No. 329/2017; (The Oriental Insurance Co. Ltd.–Vs-Smt. Malina Basumatary & 2 Ors.)

5. Learned counsel for Insurance Company also contended that as the driver of the offending vehicle was not having valid driving licence at the time of accident, as such, the Insurance Company is not liable to pay the compensation. However, the Insurance Company may be given the liberty to recover the said amount from the owner of the vehicle by following the judgment of Oriental Insurance Co. Ltd. –Vs-Nanjappan & Ors; reported in (2004) 13 SCC 224.

6. I have considered the submissions of the learned counsel for the Insurance Company and I have also gone through the Judgment of the learned trial Court. Learned trial Court has considered the submissions of the Insurance on the allegation of fake driving licence of the driver of the offending vehicle. In the said judgment, it is mentioned that the driving licence has not been produced before the trial Court. The Insurance Investigator as DW-1, has proved the signature of DTO, Nalbari, in a letter, issued to the witness, i.e., Insurance Investigator, but none has come from DTO, Nalbari, to prove Exhibit-A, i.e., the letter of the DTO, Nalbari. As the witness (DW-1) has admitted that he has failed to submit copy of driving license, as such the Insurer has failed to prove that the driver had no valid licence in his name and hence, the Insurance Company is liable to pay compensation to the claimants.

6. From the impugned judgment of the learned Tribunal, it appears that the Insurance Company has failed to prove the fact that the driver of the offending vehicle was not having the valid driving licence, at the relevant time of accident.

7. In the case of National Insurance Co. Ltd. –vs Swaran Singh, reported in (2004) 3 SCC 2 97, the Hon’ble Apex Court opined that defence of licence held by the person driving the vehicle was fake, is available to Insurance Company, but insurer has to establish willful breach on part of the insurer, which has to be determined in each case.

8. In another case, United India Insurance Co. Ltd. –vs- Lehru; reported in (2003) 3 SCC 338, it was observed that the owner at the time of hiring a driver has to check as to whether driver possesses a driving licence, if the driver produces a driving licence, which on the face of it appears to be genuine, then the owner is not expected to find out whether the licence has actually been issued by the competent authority or not; if the owner finds that