The main legal point established in the judgment is the interpretation of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 and the conditions under which the insurer can avoid liability, emphasizing the burden of proof on the insurer to establish breach on the part of the owner of the vehicle.

JUDGMENT

Ritu Bahri, J. (Oral). - The present appeal has been filed by the owner of the vehicle Surjit Khan against the award of the Tribunal dated 04.09.2006 whereby finding on issue No. 4 has been returned against the owner that driver was not having effective driving licence to drive HTV at the time of accident and in this backdrop after paying the compensation by the insurance company, recovery rights have been given to the insurance company to recover the amount from the owner, the present appellant and the driver.

2. The facts not in dispute between the parties are that on 03.03.2001 Pappu Ram was going on a cycle from Faggan. He was behind the tractor trolley. When he reached near bus stop of village Hardashpur from Faggan Majra to Patiala, a bus bearing No. PB-13H-3786 being driven by respondent No. 1 rashly and negligently was going to hit the tractor trolley, however the accident was avoided due to activeness of driver of tractor trolley and then the bus hit into the bicycle of Pappu Ram by going extreme wrong side of the road. As a result of this accident, PappuRam suffered multiple grievous injuries and died on the spot. The driver of the bus namely Mehtab Singh left the bus at the spot and ran away. After the accident FIR No. 199 dated 03.03.2001 was registered at Police Station Sadar Patiala under Sections 279/304A IPC against the driver of the bus Ex.P4. The challan was submitted by the police in Court against the driver on negligent driving. The bus was taken into police possession from the accident and photographs Ex.P26 to P31 were sufficient to return a finding that accident took place by rash and negligent driving of respondent No.1. Thereafter the tribunal proceeded to calculate the compensation as under:-

3. However, the challenge in the present case is with regard to finding on issue No. 4. Learned counsel for the appellant has referred to the Supreme Court judgment in the case of National Insurance Co. Ltd. vs. Swaran Singh and others, (2004) 2 R.C.R.(Civil) 114 to contend that even if the driving licence of the driver was fake, the insurance company cannot be absolved of the liability to make payment of the compensation as the owner of the bus i.e. the appellant was not required to verify the genuineness of the licence which was produced at the time of employing a person as a driver. He further argued that insurance company had produced and examined RW2 Balraj Kaur, Clerk, office of DTO Amritsar. She produced the record pertaining to driving licence Ex.R3 produced by respondent No. 1 Mehtab Singh and stated that as per record this driving licence bearing No. 1091 dated 27.11.1996 Ex.R3 has not been issued by their office but was renewed by their department. The driving licence had been issued in favour of one Inderjit Singh son of Gurcharan Singh and the original licence is dated 18.05.1993. The entry of this licence was produced as Ex.R4.

4. The question for consideration is whether the original licence was fake and it was subsequently renewed as admitted by Balraj Kaur, Clerk DTO Office, as RW2 the owner be held liable to make payment of compensation?

5. At this stage, the Supreme Court judgment of National Insurance Co. Ltd. (supra) goes in favour of the appellant. The appellant being owner of the bus had employed the driver keeping in view the driving licence Ex.R3 which had been renewed by the DTO Department, Amritsar, however the original licence had not been issued and on verification; the original licence was found to be fake. The owner is not expected to verify the genuineness of the licence which was already renewed by the DTO