HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

MA No. 425/2011

Reserved on:- 26.06.2020

Pronounced on:- 30 06.2020

National Insurance Company Ltd.

……Appellant(s)

Through :- Mr. Rajesh Kumar Advocate

v/s

Mst. Shamima and others

……Respondent (s)

Through :- None

HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

JUDGMENT

1.

National Insurance Company Ltd., (hereinafter referred to as the

„insurer‟) is in appeal against the award of Motor Accident Claims Tribunal,

Udhampur („Tribunal‟ for short) dated 20.05.2011 passed in a claim petition

titled “Mst. Shamima and others vs. Ravinder Singh and others”.

2.

The impugned award has been assailed by the insurer primarily on the

ground that issue No.3 framed by the Tribunal has not been correctly decided.

It is urged that as per the evidence on record, the driving licence possessed by

the driver of the offending vehicle at the time of accident was fake and,

therefore, the insurer was absolved of its liability to indemnify the owner.

3.

Having heard learned counsel for the insurer and perused the record, it

is necessary to first set out issue No.3 as framed by the Tribunal.

Issue No.3: Whether the driver of the offending vehicle was

not holding a valid and effective driving licence at the time

Coram:

::: :

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of accident, as such, insurer is not liable to indemnify the

owner ? OPR-3.

4.

The onus to prove the issue was on the appellant-insurer.

5.

Admittedly, the insurer has not led any evidence to discharge the

burden.

6.

Mr. Rajesh Kumar, learned counsel appearing for the insurer, however,

submits that since the claim petition was contested by the owner and the

driver of the offending vehicle, as such, it was incumbent upon them to

demonstrate clearly that the driver of the offending vehicle was possessing a

valid and effective driving licence.

7.

It may be noted that the insurer in its pleadings has taken a general

objection that the driver of the offending vehicle was not holding a valid and

effective driving licence, but there is no specific plea raised by the insurer

that the driving licence possessed by the driver was fake. Otherwise also, the

owner of the offending vehicle, namely Kaushalaya Devi, in her statement

has categorically stated that she had engaged the services of one Ravinder

Singh, respondent No.4 herein as driver of her Bus after checking his driving

licence and had found the same valid and effective. She has further stated

before the Tribunal that the offending vehicle had all the valid documents and

the vehicle was duly insured with the insurer.

8.

Nothing adverse has been brought out by the insurer in cross-

examination.

9.

In view of the statement of owner of the offending vehicle that she had

taken due care to ascertain that respondent No.4 was possessing a valid and

effective driving licence, it cannot be said that the insured had failed to

demonstrate with certainty that she had taken due care and caution while

engaging the services of respondent No.4.

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10.

The legal position in this regard is firmly settled. The insurer cannot be

absolved of its liability to indemnify the insured on the ground that the

driving licence of the driver of the offending vehicle was found to possess a

fake licence, particularly when the insured has come in the witness box and

stated on oath that she had taken due care and caution to examine the licence

of the driver of the offending vehicle whi