Civil Revision No.640 of 2006 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.640 of 2006 (O&M)
Date of decision:27.01.2009
Rama Kant and another .............. Petitioners
Vs.
New India Assurance Co. & Ors. .............Respondents
Present: Mr. Kanwaljit Singh, Sr. Advocate
with Mr. I.S. Gill, Advocate
for the petitioners.
Mr. Suvir Dewan, Advocate
for the respondents.
CORAM: HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
-.-
K.KANNAN, J. (ORAL)
1. The revision is directed against the order dismissing the
application to set aside an ex parte Award in a motor accident claim. As far
as the original order, the Award had been passed against Insurance
Company with a direction that the amount shall be paid by the Insurance
Company with a right of recovery against the owners.
2. The Award was passed on 31.05.2002 and application for setting
aside the Award was made on 08.10.2002, The application was filed stating
that one of the petitioners was suffering from kidney ailment and the other
petitioner who was a co-owner with him in respect to the vehicle was taking
care of him. The averment made in the petition was that the relevant driving
licence of the driver had been submitted to the counsel and they were
informed that their presence was not necessary and if it was found
necessary, the counsel would inform them. The petition was filed on a
Civil Revision No.640 of 2006 (O&M) -2-
further express statement that when the Award came to be passed, they
realized that they were unrepresented and the direction that provided for a
recovery by the Insurance Company constituted grave prejudice to them.
3. The Motor Accident Claims Tribunal dismissed the petition
entering a finding that the plea regarding forgery of the driving licence had
been gone into detail and that the Insurance Company could not be made
liable under such circumstances. The Tribunal, in fact, was not adverting to
the reasons for the non-appearance of the petitioners but was trying to find
its own reasons as to how impregnable the decision had been rendered and
that there was nothing to assail in the Award passed. According to it, the
Insurance Company could not be fastened with the liability in a case when
there was no effective driving licence at the relevant time. In my view, it
was still possible for owner to contend that he had made necessary enquiries
at the time of employing the driver and if he found nothing amiss at the time
of his initial engagement about the licence that was produced to him, the
Insurance Company would be liable to indemnify the insured. The liability
that may be fastened on the Insurance Company would depend upon the
nature of evidence that could be adduced by the owner as regards the
enquiry or otherwise about the genuineness of the driving licence of the
driver engaged to drive the vehicle at the relevant time.
4. While expressing no opinion on the merits of the Award as
regards the liability of the Insurance Company and its entitlement to recover
after payment from the owners, I deem it appropriate to give an opportunity
to contest the case on merits as regards the plea of the invalidity or
otherwise of the driving licence of the driver who had been engaged at the
time of the accident. The Award against the Insurance Company, if it had
been satisfied already, will obtain its finality only after a fresh adjudication
made after setting aside the Award that is already passed. The counsel for
Civil Revision No.640 of 2006 (O&M) -3-
the Insurance Company states that the Insurance Company has already paid
the money in terms of the Award but it shall not be recoverable from the
claimants and the adjudication which now takes place by virtue of this order
will govern only the rights of parties inter se amongst the respondents.
Subject to the above, the civil revision petition is allowed.
(K. KANNAN)
JUDGE
January 27, 2009
Pankaj*