# National Insurance Co. Ltd., Navyug Market, Ghaziabad v. Kewal Krishna Arora & Ors

- **Citation:** (2022) 4 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-02
- **Case number:** First Appeal From Order No. 3492 of 2009
- **Bench:** Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-navyug-market-ghaziabad-v-kewal-krishna-arora-ors-48312
- **Pages:** 9

## Headnote

(A) Torts Law - Motor Vehicle Act,1988 -
Section
166
-
Application
for
compensation , Section 173 - Appeals -
extent of care/diligence expected of the
employer/insured
while
employing
a
driver - Mere 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.(Para - 19,22)

(B) Torts Law - Motor Vehicle Act,1988 -
Section
140
-
Liability
to
pay
compensation in certain case on the
principle of no fault , Section 149(2)(a) -
breach
of
conditions
,
Section
149(2)(a)(ii)
-
conditions
regarding
driving liscence - claim for compensation -
open
to
the
insurer
under
Section
149(2)(a)(ii) to take a defence - driver of
the vehicle involved in the accident was
not duly licensed - onus is on the insurer -
if the owner was aware of the fact that
the licence was fake and still permitted
the driver to drive the vehicle, then the
insurer would stand absolved - mere fact
that the driving licence is fake, per se,
would not absolve the insurer. (Para -
20,21)

Deceased S/o claimant - returning home from
his office by motorcycle - truck driven by its
driver rashly and negligently dashed - causing
injuries - died same day - sum of Rs.12,70,406/-
alongwith
6
%
interest
awarded
as
compensation - driver of offending vehicle had
no valid license at the time of accident - liability
for payment of compensation cannot be
fastened
with

insurance
company
-
compensation payable by owner of the
offending vehicle - M.A.C.T. held - insurer was
liable even though the driver had a fake
license.(Para -2 to 11 )

HELD:-Not
proved
by

appellant
that
owner/respondent no.3 had not taken adequate
care and caution to verify the genuineness of
the driving licence of the driver at the time of
his employment and that the owner was aware
or had notice that the licence was fake or invalid
and still permitted him to drive the offending
vehicle.Cannot be said that the insured/owner is
at fault in having employed a person whose
licence has been found to be fake by the
insurance
company.
Appellant/Insurance
Company liable to indemnify respondents.(Para
- 24,25)

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

4 All. National Insurance Co. Ltd., Navyug Market, Ghaziabad Vs. Kewal Krishna Arora & Ors. 279

The appeal is dismissed being
devoid of merits.
----------
(2022)04ILR A279
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2022

BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

First Appeal From Order No. 3492 of 2009

National
Insurance
Co.
Ltd.,
Navyug
Market, Ghaziabad ...Appellant
Versus
Kewal Krishna Arora & Ors. ...Respondents

Counsel for the Appellant:
Sri Anand Kumar Sinha

Counsel for the Respondents:
Sri Anurag Sharma, Sri Anurag Singh, Sri
Anurag Sinha, Km. Pratima Srivastava, Sri
S. Shekhar, Sri Sharve Singh, Ms. Nirja
Singh, Sri Chandra Shekhar Singh

(A) Torts Law - Motor Vehicle Act,1988 -
Section
166
-
Application
for
compensation , Section 173 - Appeals -
extent of care/diligence expected of the
employer/insured
while
employing
a
driver - Mere 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.(Para - 19,22)

(B) Torts Law - Motor Vehicle Act,1988 -
Section
140
-
Liability
to
pay
compensation in certain case on the
principle of no fault , Section 149(2)(a) -
breach
of
conditions
,
Section
149(2)(a)(ii)
-
conditions
regarding
driving liscence - claim for compensation -
open
to
the
insurer
under
Section
149(2)(a)(ii) to take a defence - driver of
the vehicle involved in the accident was
not duly licensed - onus is on the insurer -
if the owner was aware of the fact that
the licence was fake and still permitted
the driver to drive the vehicle, then the
insurer would stand absolved - mere fact
that the driving licence is fake, per se,
would not absolve the insurer. (Para -
20,21)

Deceased S/o claimant - returning home from
his office by motorcycle - truck driven by its
driver rashly and negligently dashed - causing
injuries - died same day - sum of Rs.12,70,406/-
alongwith
6
%
interest
awarded
as
compensation - driver of offending vehicle had
no valid license at the time of accident - liability
for payment of compensation cannot be
fastened
with

insurance
company
-
compensation payable by owner of the
offending vehicle - M.A.C.T. held - insurer was
liable even though the driver had a fake
license.(Para -2 to 11 )

HELD:-Not
proved
by

appellant
that
owner/respondent no.3 had not taken adequate
care and caution to verify the genuineness of
the driving licence of the driver at the time of
his employment and that the owner was aware
or had notice that the licence was fake or invalid
and still permitted him to drive the offending
vehicle.Cannot be said that the insured/owner is
at fault in having employed a person whose
licence has been found to be fake by the
insurance
company.
Appellant/Insurance
Company liable to indemnify respondents.(Para
- 24,25)

Appeal dismissed. (E-7)

List of Cases cited:-

1. United India Insurance Co. Ltd. Vs Lehru &
ors., (2003) 3 SCC 338

2. National Insurance Co. Ltd. Vs Swaran Singh
& ors., (2004) 3 SCC 297

3. National Insurance Co. Ltd. Vs Laxmi Narain
Dhut, 2007 (3) SCC 700
280 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Pepsu Road Transport Corp.Vs National
Insurance Com. (2013) 10 SCC 217

5. Ram Chandra Singh Vs Rajaram & ors., A.I.R.
2018 SC 3789

6. Pepsu Road Transport Corp. (supra) &
Premkumari Vs Prahlad Deo, (2008) 3 SCC 193

7. Nirmala Kothari Vs United India Insurance Co.
Ltd., 2020 (4) SCC 49

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Heard Sri Anand Kumar Sinha,
learned counsel for the appellant- National
Insurance
Company, Sri
S.
Shekhar,
learned counsel for respondent nos.1 & 2
and Ms. Nirja Singh, learned counsel for
the respondent no.3.

2. This appeal under Section 173 of
Motor Vehicle Act has been filed by the
National
Insurance
Company/opposite
party
no.2/appellant
challenging
the
judgment and order dated 28.09.2009
passed by Additional District Judge/Special
Judge (SC/ST)/M.A.C.T., Ghaziabad by
which a sum of Rs.12,70,406/- alongwith 6
%
interest
has
been
awarded
as
compensation on account of death of
deceased against the appellant.

3. Facts in brief are that an application
u/s 166 & 140 M. V. Act was filed by the
claimant/respondent no.1 & 2 seeking
compensation to the tune of Rs.42,66,000/-
alongwith 18% interest alleging that on
09.03.2005 deceased Vikas Arora S/o
claimant was returning to his home from
his office by motorcycle and when he
reached near Mohan Nagar police outpost,
Ghaziabad at 7:00 P.M. a truck bearing no.
AS 01 F 4749 driven by its driver rashly
and negligently dashed him from behind
causing injuries to him as a result he died
on the same day in the hospital. F.I.R. in
this regard was lodged by the brother of
deceased on the same day at police station
concerned against unknown driver of the
said truck bearing no. AS 01 F 4749 as
Case Crime No.189 of 2005, under Section
279, 304A I.P.C.

4. Deceased was aged about 26 years
and was earning Rs.9500/- from Kamdhenu
Inspat
Ltd.
and
Rs.3000/-
from
accountancy in Agarwarl Timber and Bans
Company.
Truck
owner
as
well
as
insurance
company
contested
the
proceedings by filing written statement and
denying the allegations made by the
claimant/respondent nos.1 & 2.

5. Learned tribunal on the basis of
pleadings
and
after
appreciating
the
evidence brought on record by the parties,
both oral and documentary determined that
incident took place due to rash and
negligent driving of the driver of offending
vehicle. It recorded finding on the basis of
oral testimony of eye-witness PW-2 Kamal
Arora who proved the manner and mode of
accident. It was stated by him that he was
waiting for his brother at the police outpost
Mohan Nagar and accident took place in
his presence on 09.03.2005 at about 7:00
P.M. A truck bearing no.AS 01 F 4749 was
coming from the opposite direction and
driver of the truck was driving it rashly and
negligently which dashed the motorcycle of
deceased from behind in which deceased
got injuries and was taken to the hospital
where he died. He informed to the police
station and lodged F.I.R. PW-1 Kewal
Krishna Arora is father of deceased who
had not seen the incident. The testimony of
PW-2 was found to be unshakable in crossexamination. F.I.R. was lodged by PW-2
4 All. National Insurance Co. Ltd., Navyug Market, Ghaziabad Vs. Kewal Krishna Arora & Ors. 281
who had seen the incident and this was also
taken into account by the learned tribunal.

6. On the question of quantum, learned
tribunal found that deceased who was
working as accountant in Kamdhenu Ispat
Ltd. from where he was earning Rs.9500/-
per month as salary and was also working in
Agarwal Timber and Bans Company from
where he earned Rs.26,500/- per year. In this
regard statements of PW-3 Sushil Bhardawaj,
Assistant Regional Manager, Sales & PW-4
Puneet Agarwal care taker of his father's
business were recorded and relied on.
Deceased filed I.T.R. in assessment year
2004-05 in which he showed his income as
Rs.1,05,700/- on the basis of which his
income was assumed to be Rs.1,05,700/- out
of which 1/3 of the annual income was
deducted as personal expenses of deceased
and after applying multiplier of 18 on the age
of the deceased determined the compensation
to the tune of Rs.12,68,406/- and further
awarded a sum of Rs.2000/- for funeral
expenses. In this way, a total sum of
Rs.12,70,406
was
determined
as
compensation
payable
to
the
claimant/respondent nos.1 & 2.

7. Learned tribunal found that at the
time of accident driver of the truck causing
accident, had no valid driving license, even
though liability was fastened against the
insurance company the appellant.

8. Learned counsel for the appellant
submits that the learned tribunal has
wrongly assessed the income of deceased
on the basis of income as shown in the
I.T.R. filed by the deceased in Income Tax
Department and assessed the compensation
on higher side.

9. Learned counsel for respondent
nos.1 & 2 urged that the argument made by
learned counsel for the appellant is not
tenable regarding income of deceased and
amount of compensation as determined by
the learned tribunal but said nothing about
the liability for payment of compensation.

10. In this regard it is to note that
learned tribunal has not added any amount
under the head of future prospects and
conventional head as provided in the case
of Sarla Verma and Pranay Sethi, so it
cannot be said that the amount of award is
on higher side. Since learned counsel for
claimant/respondent nos.1 & 2 has made no
any objection relating to the awarded
amount, therefore, this Court is not inclined
to disturb the assessment of amount of
compensation as determined by the learned
triubnal.

11. It is further submitted that driver of
the offending vehicle had no valid license at
the time of accident, therefore, liability for
payment of compensation cannot be fastened
with
the
insurance
company
and
compensation was payable by the owner of
the offending vehicle. In this regard, learned
tribunal has recorded its finding while
deciding issue no.3 & 4. that owner of the
vehicle has committed breach of conditions
of insurance policy, therefore, insurance
company is not liable for making payment of
compensation but fastened the liability on the
insurance company which is illegal. Learned
tribunal has also mentioned in the judgment
that if owner of the vehicle makes breach of
conditions of insurance policy, insurance
company is entitled to recover the amount of
compensation from owner of the vehicle even
though in the operative portion liability has
been fastened on the insurance company
without giving it right to recovery.

12. Learned counsel for the respondent
no.3 (owner of the vehicle) has contended
282 INDIAN LAW REPORTS ALLAHABAD SERIES
that in this case driver of the vehicle held
driving license at the time of accident which
was
issued
from
Transport Authority,
Muzaffarpur but during investigation by the
insurance company it was found to be fake
which was not in his knowledge. The driving
license was valid at the time of accident and
he employed the driver with due care and
caution as having valid driving license,
therefore, he cannot be held liable for making
payment of compensation.

13. The main question involved in
this appeal is whether the M.A.C.T. was not
right in holding that insurer was liable even
though the driver had a fake license.

14. To understand the correct legal
position regarding liability of the insurance
company where the driver of the offending
vehicle possessed a fake driving license, I
have to go through the provisions u/s
149(2)(a) & 149(2)(a)(ii) Motor Vehicle Act,
1988 and various pronouncements made by
Hon'ble the Apex Court in this regard.

15. Section 149(2)(a) and Section
149(2)(a)(ii) are as under:-

"(2) No sum shall be payable by
an insurer under Section (1) in respect of
any judgment or award unless, before the
commencement of the proceedings in
which the judgment or award is given the
insurer had notice through the Court, or in
respect of such judgment or award so long
as execution is stayed thereon pending an
appeal; and an insurer to whom notice of
the bringing of any such proceedings is so
given shall be entitled to be made a party
thereto and to defend the action on any of
the following grounds, namely:-

(a) that there has been a breach of
a specific condition of the policy, being one
of the following conditions, namely:-

(i) a condition excluding the use
of the vehicle-

(a) for hire or reward, where the
vehicle is on the date of the contract of
insurance a vehicle not covered by a permit
to ply for hire or reward, or

(b) for organised racing and speed
testing, or

(c) for a purpose not allowed by
the permit under which the vehicle is used,
where the vehicle is a transport vehicle, or

(d)
without
side-car
being
attached where the vehicle is a motor cycle;
or

(ii) a condition excluding driving
by a named person or persons or by any
person who is not duly licenced, or by any
person who has been disqualified for
holding or obtaining a driving licence
during the period of disqualification;"

16. Breach of conditions under
Section 149(2)(a) of the Motor Vehicles
Act, 1988 absolves the insurer of its
liability to the insured. Section 149(2)(a)(ii)
deals with the conditions regarding driving
licence. In case the vehicle at the time of
accident is driven by a person who is not
duly licensed or by a person who has been
disqualified from holding or obtaining a
driving licence during the period of
disqualification, the insurer is not liable for
the compensation. In the instant case, we
are called upon to deal with a situation
where the driver allegedly possessing only
a fake driving licence.

17. In United India Insurance
Company Limited vs. Lehru and others
(2003) 3 SCC 338, a two-Judge Bench of
Hon'ble The Apex Court has taken the view
that the insurance company cannot be
permitted to avoid its liability only on the
ground that the person driving the vehicle
at the time of accident was not duly
4 All. National Insurance Co. Ltd., Navyug Market, Ghaziabad Vs. Kewal Krishna Arora & Ors. 283
licensed. It was further held that the willful
breach of the conditions of the policy
should be established. Still further it was
held that it was not expected of the
employer to verify the genuineness of a
driving licence from the issuing authority at
the time of employment. The employer
needs to only test the capacity of the driver
and if after such test, he has been
appointed, there cannot be any liability on
the employer. The situation would be
different when the employer was told that
the driving licence of its employee is fake
or false and yet the employer not taking
appropriate action to get the same duly
verified from the issuing authority. We may
extract the relevant paragraphs from the
judgment:

"18.
Now
let
us
consider
Section149(2). Reliance has been placed on
Section149(2)(a)(ii). As seen in order to
avoid liability under this provision it must
be shown that there is a "breach". As held
in Skandia and Sohan Lal Passi cases the
breach must be on part of the insured. We
are in full agreement with that. To hold
otherwise would lead to absurd results. Just
to take an example, suppose a vehicle is
stolen. Whilst it is being driven by the thief
there is an accident. The thief is caught and
it is ascertained that he had no licence.
Can the Insurance Company disown
liability? The answer has to be an emphatic
"No". To hold otherwise would be to negate
the very purpose of compulsory insurance.
The injured or relatives of the person killed
in the accident may find that the decree
obtained by them is only a paper decree as
the owner is a man of straw. The owner
himself would be an innocent sufferer. It is
for this reason that the Legislature, in its
wisdom, has made insurance, at least third
party insurance, compulsory. The aim and
purpose being that an insurance company
would be available to pay. The business of
the company is insurance. In all businesses
there is an element of risk. All persons
carrying on business must take risks
associated with that business. Thus it is
equitable that the business which is run for
making
profits
also
bears
the
risk
associated with it. At the same time
innocent parties must not be made to suffer
or loss. These provisions meet these
requirements. We are thus in agreement
with what is laid down in aforementioned
cases viz that in order to avoid liability it is
not sufficient to show that the person
driving at the time of accident was not duly
licensed. The insurance company must
establish that the breach was on the part of
the insured."

"20. When an owner is hiring a
driver he will therefore have to check
whether the driver has a driving licence. If
the driver produces a driving licence which
on the face of it looks genuine, the owner is
not expected to find out whether the licence
has in fact been issued by a competent
authority or not. The owner would then
take the test of the driver. If he finds that
the driver is competent to drive the vehicle,
he will hire the driver. We find it rather
strange that insurance companies expect
owners to make enquiries with RTOs,
which are spread all over the country,
whether the driving licence shown to them
is valid or not. Thus where the owner has
satisfied himself that the driver has a
licence and is driving competently there
would be no breach of Section149(2)(a)(ii).
The Insurance Company would not then be
absolved of liability. If it ultimately turns
out that the licence was fake, the insurance
company would continue to remain liable
unless they prove that the owner/insured
was aware or had noticed that the licence
was fake and still permitted that person to
drive. More importantly, even in such a
284 INDIAN LAW REPORTS ALLAHABAD SERIES
case the insurance company would remain
liable to the innocent third party, but it may
be able to recover from the insured. This is
the law which has been laid down in
Skandia, Sohan Lal Passi and Kamla cases.
We are in full agreement with the views
expressed therein and see no reason to take
a different view."

18. The matter was subsequently
considered by a three-Judge Bench of
Hon'ble the Apex Court in National
Insurance Company Limited vs. Swaran
Singh and others (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:

"92. 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."

"99. 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."

"100. 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."

"101. 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."

19. Swaran Singh's case (supra) was
subsequently considered by Hon'ble the
Apex
Court
in
National
Insurance
Company Limited vs. Laxmi Narain Dhut
2007 (3) SCC 700. It was explained that:

"Mere 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
4 All. National Insurance Co. Ltd., Navyug Market, Ghaziabad Vs. Kewal Krishna Arora & Ors. 285
driver or one who was not disqualified to
drive at the relevant time..."

20. In the case of Pepsu Road
Transport
Corporation
vs.
National
Insurance Company (2013) 10 SCC 217
Honb'le the Apex Court after considering
the law as laid down in aforementioned
cases, has held in para 8 which is as under:-

8.In a claim for compensation, it
is certainly open to the insurer under
Section 149(2)(a)(ii) to take a defence that
the driver of the vehicle involved in the
accident was not duly licensed. Once such
a defence is taken, the onus is on the
insurer. But even after it is proved that the
licence possessed by the driver was a fake
one, whether there is liability on the insurer
is the moot question. As far as the owner of
the vehicle is concerned, when he hires a
driver, he has to check whether the driver
has a valid driving licence. Thereafter he
has to satisfy himself as to the competence
of the driver. If satisfied in that regard also,
it can be said that the owner had taken
reasonable care in employing a person who
is qualified and competent to drive the
vehicle. The owner cannot be expected to
go beyond that, to the extent of verifying
the genuineness of the driving licence with
the licensing authority before hiring the
services of the driver. However, the
situation would be different if at the time of
insurance of the vehicle or thereafter the
insurance company requires the owner of
the vehicle to have the licence duly verified
from the licensing authority or if the
attention of the owner of the vehicle is
otherwise invited to the allegation that the
licence issued to the driver employed by
him is a fake one and yet the owner does
not take appropriate action for verification
of the matter regarding the genuineness of
the licence from the licensing authority.
That is what is explained in Swaran Singh's
case (supra). If despite such information
with the owner that the licence possessed
by his driver is fake, no action is taken by
the insured for appropriate verification,
then the insured will be at fault and, in such
circumstances, the insurance company is
not liable for the compensation.

21. In the case of Ram Chandra
Singh vs. Rajaram & others, A.I.R. 2018
SC 3789, Hon'ble the Apex Court by
considering the judicial precedents in the
case
of
Pepsu
Road
Transport
Corporation (supra) & Premkumari vs.
Prahlad Deo (2008) 3 SCC 193 ruled in
para 11 which is given as under:-

11. Suffice it to observe that it is
well established that if the owner was
aware of the fact that the licence was fake
and still permitted the driver to drive the
vehicle, then the insurer would stand
absolved. However, the mere fact that the
driving licence is fake, per se, would not
absolve the insurer. Indubitably, the High
Court noted that the counsel for the
appellant did not dispute that the driving
licence was found to be fake, but that
concession by itself was not sufficient to
absolve the insurer.

22. Again in a recent case of Nirmala
Kothari vs. United India Insurance
Company Ltd. 2020 (4) SCC 49 Hon'ble
the
Apex
Court
considered
the
aforementioned
position
of
law
and
explained about the extent of care/diligence
expected of the employer/insured while
employing a driver. The relevant para no.9,
10 & 11 are as under:-

9. While the insurer can certainly
take the defense that the license of the
driver of the car at the time of incident was
286 INDIAN LAW REPORTS ALLAHABAD SERIES
invalid/fake however the onus of the
proving that the insured did not take
adequate care and caution to verify the
genuineness of the license or was guilty of
willful breach of the conditions of the
insurance policy or the contract of
insurance lies on the insurer.

10.The view taken by the National
Commission that the law as settled in the
Pepsu case (Supra) is not applicable in the
present matter as it related to third-party
claim
is
erroneous.
It
has
been
categorically held in the case of National
Insurance Co. Ltd vs. Swaran Singh &
Ors.

"110. (iii).... Mere 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 a duly licenced driver or one
who was not disqualified to drive at the
relevant time."

11. While hiring a driver the
employer is expected to verify if the
driver has a driving license. If the driver
produces a licence which on the face of it
looks genuine, the employer is not
expected to further investigate into the
authenticity of the licence unless there is
cause
to believe
otherwise.
If
the
employer finds the driver to be competent
to drive the vehicle and has satisfied
himself that the driver has a driving
licence there would be no breach of
Section 149(2)(ii) and the Insurance
Company would be liable under the
policy. It would be unreasonable to place
such a high onus on the insured to make
enquiries with RTOs all over the country
to ascertain the veracity of the driving
licence.
However,
if
the
Insurance
Company is able to prove that the
owner/insured was aware or had notice
that the licence was fake or invalid and
still permitted the person to drive, the
insurance company would no longer
continue to be liable.

23. In the present case opposite
party no.1/respondent no.3 owner of the
offending vehicle had stated in his written
statement that on the date of accident
Ram Naresh was driver on his vehicle.
He had valid dirving licence. It was
issued
from
the
office
of
District
Transport
Officer,
Muzaffarpur.
On
investigation
by
the
Insurance
company/appellant, this driving licence
was found to be fake as per report of
Investigator Mr. Arvind Kumar Misra but
he had not entered into the witness box to
prove the contents of his report which
was based on the observation of dealing
assistant. Even the dealing assistant of
the office of District Transport Officer,
Muzaffarpur has also not been examined
to prove that the seal and signature of
District Transport Officer in the xerox
copy of driving licence were not found to
be correct.

24. Further it was also not proved by
the appellant that the owner/respondent
no.3 had not taken adequate care and
caution to verify the genuineness of the
driving licence of the driver at the time of
his employment and that the owner was
aware or had notice that the licence was
fake or invalid and still permitted him to
drive the offending vehicle. In such
circumstances, it cannot be said that the
insured/owner is at fault in having
employed a person whose licence has been
4 All. The State of U.P. Vs. Dharmu @ Dharam Singh
287
found to be fake by the insurance company
before the learned tribunal. Therefore, there
exists no any cause to disturb the findings
recorded by learned tribunal in this regard.

25. In view of the above, this appeal
is
dismissed.
The
appellant/Insurance
Company is liable to indemnify the
respondents. Claimants be given the same
without keeping in the fixed deposit as
more than 16 years have elapsed.

26. There is no order as to costs.
----------
(2022)04ILR A287
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE VIKRAM D CHAUHAN, J.

Government Appeal No. 1450 of 1989

The State of U.P. ...Appellant
Versus
Dharmu @ Dharam Singh ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:
Sri Vinay Saran, Sri Virendra Saran, Sri Ajay
Kumar Srivastava

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 378 - Indian
Penal Code,1860-Sections 376-challenge
to-acquittal-victim aged about 9 years
did not budge from the prosecution
version, she identified the accused, she
stated time and place of accident which
has been duly testified and proved by
the
informant
(PW-1)-blood
stained
underwear was recovered-Moreso, she
declined the specific query whether she
has been tutored-testimony of the victim
duly corroborated by the medical expert
opinion, merely for the reason that the
supplementary
medical
examination
report that the offence was committed
24-30 hrs and the same was not noted
by the medical expert while examining
the prosecutrix would not reject the
testimony of the victim-The conviction
of the accused can rest on the sole
testimony of the prosecutrix provided
she is a sterling witness; her testimony
is credible, truthful and trustworthyFurther
the
shortcoming
of
the
prosecution, if any, would not benefit
the defence-The sole testimony of the
victim was sufficient to have convicted
the accused.(Para 1 to 25)

B. The sterling witness should be of a
very high quality. to test the quality of
such witness, what would be more
relevant would be the consistency of the
statement right from the starting point
till the end, it should be natural. The
witness should be in a position to
withstand the cross-examination of any
length and howsoever strenuous it may
be and under no circumstances should
give room for any doubt as to the factum
of the occurrence, the persons involved,
as well as the sequence of it.(Para 18)

The appeal is allowed. (E-6)
List of Cases cited:

1. Rai Sandeep Vs St. (NCT of Delhi) (2012) 8
SCC 21

2. Sham Singh Vs St. of Har. (2018) 18 SCC 34

3. St. of Punj. Vs Gurmit Singh (1996) 2 SCC
384

4. Ranjit Hazarika Vs St. of Assam (1998) 8 SCC
635

5. St. of M.P. Vs Babulal (2008) 1 SCC 234

6. Dinesh Vs St. of Raj. (2006) 3 SCC 77

(Delivered by Hon'ble Suneet Kumar, J.)