The National Insurance Co Ltd v. Dinesh Kumar & Ors.

1. For the reasons stated in the application, the delay of 20 days in filing the appeal stands condoned.

2. The application is disposed of. MAC.APP. 704/2018 & CM APPL. 30328/2018

3. This appeal has been filed challenging the Award dated 05.04.2018 (hereinafter referred to as the ‘Impugned Award’) passed by the learned Motor Accidents Claims Tribunal-01, North, Rohini, Delhi (hereinafter referred to as ‘Tribunal’) in Suit no.4457/2016, titled Dinesh Kumar & Anr. v. Avdesh Kumar & Ors.

4. It was the case of the claimants, that is, the respondent nos.[1] and 2 herein, before the learned Tribunal that on 17.11.2014 at about 3 p.m., the deceased, that is, Baby Achal, was playing in front of Jhuggi, Sector-8, Noida, Uttar Pradesh, when a Tata Sumo bearing registration no. UP16BT 3455, being driven by the respondent no.3 herein at a high speed and in a rash and negligent manner, hit the deceased. Due to the impact of the accident, the deceased suffered fatal injuries.

5. The limited challenge of the appellant to the Impugned Award is on the denial of the learned Tribunal to grant a right to the appellant to recover the compensation paid to the respondent nos.[1] and 2 herein, who were the claimants before the learned Tribunal, from the respondent no.4 herein, that is owner of the offending vehicle. Submissions by the learned counsel for the appellant:

6. The learned counsel for the appellant submits that the appellant had issued a notice under Order XII Rule 8 of the Code of Civil Procedure, 1908 (in short, ‘CPC’) to the respondent no.4 herein, seeking the production of the driving licence of the driver of the Offending Vehicle, that is, the respondent no. 3 herein. In spite of service of the said notice, the respondent no.4 neither provided the driving licence nor appeared before the learned Tribunal. The appellant proved the notice through the testimony of its witness, namely Mr.B.S. Yadav (R3W[1]), working as Assistant with the appellant company. However, his testimony was discarded by the learned Tribunal observing that from the tracking report, it could not be shown as to on whom the said notice was served. He submits that the appellant also took steps to summon the officer/report from the Motor Licencing Officer, Mainpuri, UP, (hereinafter referred to as ‘MLO’), who, in spite of service of notice twice, did not appear before the learned Tribunal. The appellant also served the notice on the MLO dasti, however, in spite of the same, the witness did not turn up before the learned Tribunal, forcing the appellant to close its evidence. He submits that the report of the office of the MLO, however, stated that the licence produced by the respondent no.3 herein was fake and not issued by the said office. He submits that therefore, the appellant should have been granted a right to recover the compensation paid to the respondent nos.[1] and 2 from the respondent no.4. Analysis:

7. I have considered the submissions made by the learned counsel for the appellant, however, in the peculiar facts of the present case, I am unable to agree with the same.

8. The onus of proving that the driving licence of the driver/respondent no.3 was fake and not genuine was on the appellant. As noted by the learned Tribunal, the appellant took steps to summon the witness from the MLO, however, as the witness was not appearing, closed its evidence on its own. The appellant therefore, did not insist upon the learned Tribunal to enforce the presence of the MLO before it. Having not done so, the appellant shall bear the consequences of the same.

9. The evidence of R3W1-Mr.B.S.Yadav cannot come to the aid of the appellant. The said witness has placed on record the notice dated 12.05.2016 issued under Order XII Rule 8 of the CPC to the respondent no.4 (Ex.R3W1/3). The said notice called upon the respondent no.4 to produce the original driving licence of the respondent no.3. It did not put the respondent no.4 to notice that the driving licence produced by the respondent no.3 was fake and not genuine. Similarly, no notice of the purported report of MLO was ever served on the respondent no.4.

10. In National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, the Supreme Court in the cases of the driver of the Offending Vehicle having a fake driving licence, has observed as under: