Alok Singh, J. (Oral)
Learned Tribunal vide impugned judgment dated 09.01.2013 directed that awarded compensation should be recovered from the owner of the vehicle, on the ground that driver was having fake driving license.
Honble Apex Court in the case of Pepsu Road Transport Corporation Vs. National Insurance Company reported in 2013 (10) SCC 217 having relied upon judgment passed by three-Judge Bench in the case of National Insurance Company Ltd. Vs. Swaran Singh and others reported in 2004 (3) SCC 297 has held as under:
œThe matter was subsequently considered by a three-Judge Bench of this Court in National Insurance Co. Limited v. Swaran Singh and Ors. (2004) 3 SCC 297. The said Bench was of the view that in case the insured did not take reasonable and adequate care and caution to verify the genuineness or otherwise of the licence, the liability would still be open-ended and will have to be determined on the basis of facts of each case. The relevant discussions are available at paragraphs 92, 99, 100 and 101, which are extracted below:
œ92. It may be true as has been contended on behalf of the Petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehru case, the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever.?
œ99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case.?
œ100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case.?
œ101. The submission of Mr. Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver.?
7. Swaran Singh's case (supra) was subsequently considered by a two-Judge Bench of this Court in National Insurance Co. Limited v. Laxmi Narain Dhut (2007) 3 SCC 700. It was explained that:
œMere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time....?
Learned counsel for the parties fairly submit that no fair opportunity was given to the parties to prove that while engaging the driver to drive the vehicle, in question, owner was fully aware that driver was not having valid license and despite this knowledge, driver was engaged to drive the vehicle, in question; Insured was negligent and failed to exercise reasonable case in the matter of fulfilling the condition of policy.
Learned counsel for the parties fairly submits that matter be remitted back to the Tribunal to decide the question as to whether, it was within the knowledge of the owner of the vehicle, at the time of engaging the driver, that driver was not having valid driving license and despite this knowledge, he engaged the driver to driver the vehicle, in question or insured was negligent and failed to exercise reasonable case, while engaging the person to drive the vehicle without valid driving license.