# Ram Shabad Yadav v. Harilal & Ors

- **Citation:** (2023) 5 ILRA 140
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** First Appeal From Order No. 217 of 2018
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shabad-yadav-v-harilal-ors-50110
- **Pages:** 11

## Headnote

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-deceased died of injuries
sustained in accident by the rash and
negligent driving of the driver of the
truck-Ld.
Tribunal
found
that
the
insurance policy terms were breached,
therefore, the insurance company was
absolved of its liability on this footing on
the ground that the driver had no valid
driving licence and the liability to pay the
compensation is on the owner-the burden
lies on the owner of proving foundational
facts
but
failed
to
establish
the
foundational facts because the owner did
not appear in the witness box to prove
that the driving licence was produced
before him and he was satisfied with its
genuineness at the time of the driver's
appointment-Insurance company can be
held liable only when foundational facts
are pleaded and proved by the owner of
the offending vehicle by the owner of the
truck-If the insurance company is able to
prove that the owner 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-Hence,
no
interference requires in the impugned
award.(Para 1 to 29)

B. Form 54 being a certified copy of a
public
document
namely
the
state
register of driving licencse, need not to
be proved by examining a witness. Once
a certified copy of the entries made in
the register maintained under section
26(1) read with Rule 23 is issued in
form-54 it is admissible in evidence
under section 77 of the Evidence Act and
no further proof of form 54 by oral
evidence by examining witnesses is
required. (Para 27)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

140 INDIAN LAW REPORTS ALLAHABAD SERIES
interference with the quantum which has
been awarded.

14. Rate of interest in the year 2003
was 9% which also does not require any
interference.

15.
Accordingly,
this
appeal
is
dismissed.

16. Record be sent back to the
tribunal. Stay, if any, stands vacated.

17. The amount kept in fixed deposit
be given to the claimant as 20 years has
elapsed from the date of filing of this
appeal.

18. This Court is thankful to both the
learned counsels for ably assisting this
Court.
----------
(2023) 5 ILRA 140
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

First Appeal From Order No. 217 of 2018

Ram Shabad Yadav ...Appellant
Versus
Harilal & Ors. ...Respondents

Counsel for the Appellant:
Sri Satyendra Pandey

Counsel for the Respondents:
Sri Prem Chand Srivastava, Sri Rahul Sahai,
Sri Aditya Singh Parihar

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-deceased died of injuries
sustained in accident by the rash and
negligent driving of the driver of the
truck-Ld.
Tribunal
found
that
the
insurance policy terms were breached,
therefore, the insurance company was
absolved of its liability on this footing on
the ground that the driver had no valid
driving licence and the liability to pay the
compensation is on the owner-the burden
lies on the owner of proving foundational
facts
but
failed
to
establish
the
foundational facts because the owner did
not appear in the witness box to prove
that the driving licence was produced
before him and he was satisfied with its
genuineness at the time of the driver's
appointment-Insurance company can be
held liable only when foundational facts
are pleaded and proved by the owner of
the offending vehicle by the owner of the
truck-If the insurance company is able to
prove that the owner 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-Hence,
no
interference requires in the impugned
award.(Para 1 to 29)

B. Form 54 being a certified copy of a
public
document
namely
the
state
register of driving licencse, need not to
be proved by examining a witness. Once
a certified copy of the entries made in
the register maintained under section
26(1) read with Rule 23 is issued in
form-54 it is admissible in evidence
under section 77 of the Evidence Act and
no further proof of form 54 by oral
evidence by examining witnesses is
required. (Para 27)

The appeal is dismissed. (E-6)

List of Cases cited:

1. United India Ins. Co. Ltd. Vs Lehru & ors.
(2003) 0 SC 251

2. NICL Vs Swaran Singh & ors. (2004) AIR SC
1531

3. Pepsu Road Trans. Corp. Vs National Ins. Co.
(2013) 10 SCC 217
5 All. Ram Shabad Yadav Vs. Harilal & Ors.
141
4. Pappu & ors. Vs Vinod Kumar Lamba & anr.
(2018) 3 SCC 208

5. Prem Kumari Vs Prahlad Dev. (2008) 3 SCC
193

6. Nirmala Kothari Vs United India Ins. Ltd.
(2020) 4 SCC 49

7. Rishi Pal Singh Vs New India Assur. Co. Ltd
& ors. MANU/SC/1303/2022

8.
Kedar
Singh
Vs
Sarla
Devi
&
ors.
MANU/UP/1726/2021

9. Oriental Ins. Co. Ltd. Vs Smt. Poonam
Kesarwani & ors. (2009) 0 ADJ 1

(Delivered by Hon'ble Ajay Bhanot, J.)

1. This first appeal from order arises
out of the judgment and award dated
13.10.2017 passed by the learned Motor
Accident
Claims
Tribunal/learned
Additional District Judge, Maharajganj in
Motor Accident Claim Petition No.114 of
2014 (Harilal and others Vs. Ram Shabad
Yadav and others).

2. The owner-appellant contesting the
liability to pay the compensation.

3. Briefly the case of the claimants
before the learned tribunal was that the
deceased-Bhanmati
died
of
injuries
sustained in an accident which occurred on
02.05.2014 and was caused by the rash and
negligent driving of the driver of truck
bearing Registration No. UP-52F-0405.
The offending vehicle was insured by the
respondent
Insurance
Company.
The
claimants were dependant on the deceased.
The deceased was 44 years of age at the
time of the accident.

4. The
learned
tribunal
in
the
impugned award found for the claimants by
holding that the driver of the offending
truck drove negligently and was solely
responsible for the accident which resulted
in the death of the deceased. Learned
tribunal found that the insurance policy
terms
were
breached. The
insurance
company was absolved of its liability on
this footing, and the owner was made liable
to pay the awarded compensation.

5. Shri Satendra Pandey, learned
counsel for the appellant-owner contends
that the learned tribunal erred in law by
absolving the Insurance Company of the
liability to pay the compensation. The
finding that the appellant-owner had
breached the terms of the insurance policy
since the insured vehicle was being driven
by a person who was not in possession of
valid driving licence is perverse. The award
was illegal and is liable to be set aside.

6. Shri Aditya Singh Parihar, learned
counsel holding brief of Shri Rahul Sahai,
learned
counsel
for
the
respondentInsurance Company contends that the
award passed by the learned tribunal is
lawful and brooks no interference. The
liability to pay the compensation is on the
owner since there was a breach of the
insurance policy.

7. After advancing their arguments,
learned counsel for both the parties agree
that though many grounds have been
pleaded, only the following question fall
for consideration in this appeal:-

Whether, in the facts of this case,
the learned tribunal erred in law by fixing
the liability to pay the compensation on the
owner of the offending vehicle?

8. These facts found by the learned
tribunal are undisputed. The accident
142 INDIAN LAW REPORTS ALLAHABAD SERIES
occurred on account of the rash and
negligent driving of the offending truck.
The offending truck was insured by the
respondent-Insurance company.

9. The Insurance company contested
the validity of the licence of the driver of
the offending vehicle since inception of the
claim petition by filing a written statement.
The written statement asserts that not only
the licence was fake but the owner was
fully aware of these facts.

10. The owner as well as the driver in
the written statement asserted that the latter
was skilled at driving and was in
possession of a valid driving licence.

11. It is evident from the facts that
the
insurance
company
categorically
denied the validity of the licence and
pleaded wilful knowledge and liability of
the owner in permitting the driver to
drive without a valid driving licence.
Neither the owner nor the driver appeared
in the witness box to establish that the
owner had exercised due diligence to
ensure that the driver had the requisite
driving skill and was in possession of a
valid driving licence. Requisite pleadings
by the owner/appellant in this regard too
are absent.

12. On its part the insurance
company introduced form 54 issued by
the concerned RTO Office to establish
that the driving licence tendered in
evidence by the owner of the vehicle as
well as the driver was a fake one. Form
54 was never contested by the owner.

13. With these established facts it
remains to be seen whether the insurance
company can be absolved of its liability
and whether entire liability of paying the
compensation has to be borne by the
owner-appellant.

14. Non possession of a valid driving
licence as a ground to deny the insurance
cover or fasten liability upon the owner
of the vehicle was in issue in a number of
cases before various constitutional courts.
These were cited at the Bar.

15. The discussion had advantage of
good authorities in point which shall also
determine the result of the appeal.

16.
The
question
whether
the
insurance company could be permitted to
avoid its liability only on ground that the
driver of the offending vehicle at the time
of accident was not duly licensed was in
issue
in
United
India
Insurance
Company Ltd. v. Lehru and others1.
The Supreme Court in Lehru (supra)
held that the insurance company could be
absolved of its contractual and statutory
obligation only if it established wilful
breach of condition of policy by the
insured by holding thus:

"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 RTO's,
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
5 All. Ram Shabad Yadav Vs. Harilal & Ors.
143
licence and is driving competently there
would
be
no
breach
of
Section
149(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 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 's
Sohan Lal Passi 's and Kamla 's case. We
are in full agreement with the views
expressed therein and see no reason to take
a different view."

17. Whether fake or forged licence in
itself was sufficient for constituting wilful
breach of the conditions of the insurance
policy or the contract of insurance arose for
consideration in National Insurance Co.
Ltd. v. Swaran Singh and others2. The
Supreme Court in Swaran Singh (supra)
underscored the importance of "reasonable
care" on part of owner to enquire into the
validity of the driver's license by holding
thus:

"2. In view of the fact that these
petitions involve pure questions of law, it is
not necessary to advert to the individual
fact pertaining to each matter.

Suffice, however, is to point out
that
the
vehicles
insured
with
the
petitioners were involved in accidents
resulting in filing of claim applications by
the respective legal representatives of the
deceased(s) or the injured person(s), as the
case may be.

3.
Defences
raised
by
the
Petitioner company in the claim petitions
purported to be in terms of Section
149(2)(a)(ii) of the Motor Vehicles Act,
1988 (hereinafter referred to as 'the Act')
were : (a) driving licence produced by the
driver or owner of the vehicle was a fake
one; (b) driver did not have any licence
whatsoever; (c) licence, although was
granted to the concerned driver but on
expiry thereof, the same had not been
renewed; (d) licence granted to the drivers
being for one class or description of vehicle
but the vehicle involved in the accident was
of different class or description; and (e) the
vehicle in question was driven by a person
having a learner's licence.

34. The question as to whether an
insurer can avoid its liability in the event it
raises a defence as envisaged in Subsection (2) of Section 149 of the Act
corresponding to sub-section (2) of Section
96 of the Motor Vehicles Act, 1939 had
been the subject matter of decisions in a
large number of cases.

35. It is beyond any doubt or
dispute that under Section 149(2) of the Act
an insurer, to whom notice of the bringing
of any proceeding for compensation has
been given, can defend the action on any of
the grounds mentioned therein.

36. However, Clause (a) opens
with the words "that there has been a
breach of a specified condition of the
policy", implying that the insurer's defence
of the action would depend upon the terms
of the policy. The said sub-clause contains
three conditions of disjunctive character,
namely, the insurer can get away from the
liability when (a) a named person drives the
vehicle; (b) it was being driven by a person
who did not have a duly granted licence;
and (c) driver is a person disqualified for
holding or obtaining a driving licence.

37. We may also take note of the
fact that whereas in Section 3 the words
used are 'effective licence', it has been
144 INDIAN LAW REPORTS ALLAHABAD SERIES
differently worded in Section 149(2) i.e. '
duly licensed'. If a person does not hold an
effective licence as on the date of the
accident, he may be liable for prosecution
in terms of Section 141 of the Act but
Section 149 pertains to insurance as regard
third party risks.

38. A provision of a statute which
is penal in nature vis-`-vis a provision
which is beneficent to a third party must be
interpreted differently. It is also well known
that the provisions contained in different
expressions
are
ordinarily
construed
differently.

39. The words 'effective licence'
used in Section 3, therefore, in our opinion
cannot be imported for sub-section (2) of
Section 149 of the Motor Vehicles Act. We
must also notice that the words 'duly
licensed' used in sub-section (2) of Section
149 are used in past tense.

40. Thus, a person whose licence
is ordinarily renewed in terms of the Motor
Vechiles Act
and
the
rules
framed
thereunder despite the fact that during the
interregnum period, namely, when the
accident took place and the date of expiry
of the licence, he did not have a valid
licence, he could during the prescribed
period apply for renewal thereof and could
obtain the same automatically without
undergoing any further test or without
having been declared unqualified therefor.
Proviso
appended
toSection
14
in
unequivocal term states that the licence
remains valid for a period of thirty days
from the day of its expiry.

64. The proposition of law is no
longer res integra that the person who
alleges breach must prove the same. The
insurance company is, thus, required to
establish the said breach by cogent
evidence. In the event, the insurance
company fails to prove that there has been
breach of conditions of policy on the part
of the insured, the insurance company
cannot be absolved of its liability. (See
Sohan Lal Passi (supra)

65. Apart from the above, we do
not intend to lay down anything further i.e.
degree of proof which would satisfy the
aforementioned requirement inasmuch as
the same would indisputably depend upon
the facts and circumstances of each case. It
will also depend upon the terms of contract
of insurance . Each case may pose different
problem which must be resolved having to
a large number of factors governing the
case including conduct of parties as regard
duty
to
inform,
correct
disclosure,
suppression, fraud on the insurer etc. It will
also depend upon the fact as to who is the
owner of the vehicle and the circumstances
in which the vehicle was being driven by a
person having no valid and effective
licence. No hard and fast rule can therefor
be laid down. If in a given case there exists
sufficient material to draw an adverse
inference against either the insurer or the
insured, the Tribunal may do so. The
parties alleging breach must be held to have
succeeded in establishing the breach of
conditions of contract of insurance on the
part of the insurer by discharging its burden
of proof. The Tribunal, there cannot be any
doubt, must arrive at a finding on the basis
of the materials available on records.
87. 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's case (supra), the
matter has been considered at some details.
We are in general agreement with the
approach of the Bench but we intend to
point out that the observations made therein
5 All. Ram Shabad Yadav Vs. Harilal & Ors.
145
must be understood to have been made in
the light of the requirements of 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 the owners be
absolved from any liability whatsoever. We
would be dealing in some details with this
aspect of the matter a little later.

94. So far as the purported
conflict in the judgments of Kamla (supra)
and Lehru (supra) 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.

95. The court, however, in Lehru
(supra) must not read that an owner of a
vehicle can under no circumstances has 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.

105.
The
summary
of
our
findings to the various issues as raised in
these petitions are as follows:

xxxxxx

(ii) Insurer is entitled to raise a
defence in a claim petition filed under
Section 163 A or Section 166 of the Motor
Vehicles Act, 1988 inter alia in terms of
Section 149(2)(a)(ii) of the said Act.

(iii)
The
breach
of
policy
condition e.g., disqualification of driver or
invalid driving licence of the driver, as
contained in sub-section (2)(a)(ii) of
section 149, have to be proved to have been
committed by the insured for avoiding
liability by the insurer. 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 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.

(iv) The insurance companies are,
however, with a view to avoid their liability
must not only establish the available
defence(s) raised in the said proceedings
but must also establish 'breach' on the part
of the owner of the vehicle; the burden of
proof wherefor would be on them.

(v) The court cannot lay down
any criteria as to how said burden would be
discharged, inasmuch as the same would
depend upon the facts and circumstance of
each case.

(vii) The question as to whether
the owner has taken reasonable care to find
out as to whether the driving licence
produced by the driver, (a fake one or
otherwise), does not fulfil the requirements
of law or not will have to be determined in
each case."

18. The insurance company in Pepsu
Road Transport Corporation v. National
Insurance Company3, resisted its liability
by taking the defence that the driver of the
vehicle involved in the accident was not
duly licensed. The brief facts of the case in
Pepsu
Road Transport
Corporation
(supra) were stated in para 2 as under:

"2. Widow and two minor sons of
late Gurjinder Singh Modi are claimants
before
the
Motor
Accidents
Claims
Tribunal, Chandigarh in M.A.C.T. No.
146 INDIAN LAW REPORTS ALLAHABAD SERIES
63/481 filed in the year 2002. The
allegation was that Gurjinder Singh Modi
died out of a motor accident on 04.10.2001
on account of the negligent driving of bus
no. PB-11-K-8512 of the Pepsu Road
Transport Corporation (for short, ''PRTC'),
Patiala, the appellant herein. Rs.30,00,000/-
was claimed as compensation. Negligence
was
proved.
The
Tribunal
awarded
Rs.11,03,404/- as compensation. However,
the insurance company was absolved of its
liability since the licence issued to the
driver was found to be fake. The insurance
company took the Local Commissioner to
licensing
authority,
Darjeeling,
WestBengal and, on verification of the available
records, it was reported that no such licence
as possessed by the driver has been issued
by
the
said
licensing
Authority
at
Darjeeling. Thus, aggrieved, the owner of
the vehicle, viz., PRTC, Patiala has come
up in appeal."

19.
In
Pepsu
Road
Transport
Corporation (supra), the responsibility of
the owner while employing a driver to avail
the benefit of insurance was stated thus:

"10. 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."

20. Breach of conditions under Section
149(2)(a) which absolve the insurer of its
liability to be insured, and the conditions
regarding driving licence under Section
142(2)(a) was once again was posed before
the learned three judge bench of the
Supreme Court in Pappu and others v.
Vinod Kumar Lamba and another4 . In
Pappu (supra) heightened diligence was
expected from a vehicle owner once the
insurance company disputed its liability by
asserting that the insurance policy had been
breached and that the offending vehicle was
not driven by a person with a valid driving
licence. Pappu (supra) emphasised the
need for the owner to take specific
pleadings and adduce supporting evidence
in this regard by stating thus:
5 All. Ram Shabad Yadav Vs. Harilal & Ors.
147

"13. In the present case, the
respondent No.1 owner of the offending
vehicle merely raised a vague plea in the
Written Statement that the offending
vehicle DIL-5955 was being driven by a
person having valid driving licence. He did
not disclose the name of the driver and his
other details. Besides, the respondent
No.1 did not enter the witness box or
examine any witness in support of this
plea. The respondent No.2 Insurance
Company in the Written Statement has
plainly refuted that plea and also asserted
that the offending vehicle was not driven
by an authorised person and having valid
driving licence. The respondent No.1
owner of the offending vehicle did not
produce any evidence except a driving
licence of one Joginder Singh, without
any specific stand taken in the pleadings
or in the evidence that the same Joginder
Singh was, in fact, authorised to drive
the vehicle in question at the relevant
time. Only then would onus shift, requiring
the respondent No.2 Insurance Company to
rebut such evidence and to produce other
evidence to substantiate its defence. Merely
producing a valid insurance certificate in
respect of the offending Truck was not
enough for the respondent No.1 to make
the Insurance Company liable to discharge
his liability arising from rash and negligent
driving by the driver of his vehicle. The
Insurance Company can be fastened with
the liability on the basis of a valid
insurance policy only after the basic facts
are pleaded and established by the owner of
the offending vehicle - that the vehicle was
not only duly insured but also that it was
driven by an authorised person having a
valid driving licence. Without disclosing
the name of the driver in the Written
Statement or producing any evidence to
substantiate the fact that the copy of the
driving licence produced in support was of
a person who, in fact, was authorised to
drive the offending vehicle at the relevant
time, the owner of the vehicle cannot be
said to have extricated himself from his
liability. The Insurance Company would
become liable only after such foundational
facts are pleaded and proved by the owner
of the offending vehicle."

 (emphasis supplied)

21. In Premkumari v. Prahlad Dev5,
the Supreme Court once again reiterated
the obligation of the owner to satisfy
himself regarding the driving skills and
validity of the driving license at the time of
appointing him by holding thus:

"7. It is clear from the above
decision when the owner after verification
satisfied himself that the driver has a valid
licence and driving the vehicle in question
competently at the time of the accident there
would be no breach of Section 149(2)(a)(ii),
in that event, the Insurance Company would
not then be absolved of liability. It is also
clear that even in the case that the licence was
fake, the Insurance Company would continue
to remain liable unless they prove that the
owner was aware or noticed that the licence
was fake and still permitted him to drive."

22. The nature of verification to be
undertaken by an owner while hiring a driver
in order to defeat the insurance company's
defence against its liability was directly and
substantially in issue in Nirmala Kothari v.
United India Insurance Ltd6. Upon
consideration and in light of the authorities
discussed in the preceding paragraphs, the
Supreme Court reiterated the legal position in
Nirmala Kothari (supra) by holding thus:

"12. While hiring a driver the
employer is expected to verify if the driver
has a driving licence. If the driver produces
148 INDIAN LAW REPORTS ALLAHABAD SERIES
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)(a)(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. Similarly, the responsibility of an
owner while engaging a driver was
explained in Rishi Pal Singh v. New India
Assurance Co. Ltd. and others7 in the
following terms:

"10. The owner of the vehicle is
expcted to verify the driving skills and not
run to the licensing authority to verify the
genuineness of the driving license before
appointing a driver. Therefore, once the
owner is satisfied that the driver is
competent to driver the vehicle, it is not
expected from the owner thereafter to
verify the genuineness of the driving
license issued to the driver."

24. The undisputed facts on which the
judgements of this Court in Kedar Singh v.
Sarla Devi and others8 were founded are
these. The driving licence of the driver at
the time of the accident was found to be
fake. The owner merely produced a
photocopy of the driving license. The
driver was not examined by the owner of
the truck nor did the owner enter the
witness box. The insurance company filed
Form 44 which established that the
photocopy of the licence brought in the
record by the owner was fake.

25. Siddharth, J. in these facts found
that the owner had not taken due reasonable
care while appointing the driver and was
failed to prove the basic facts required of
him in law to avail the benefit of insurance
by holding thus:

"29.
Regarding
the
second
submission of the learned counsel for the
owner of the truck/appellant of the
discarding of the validity of driving licence
of the truck driver by the tribunal, this court
finds that only photocopy of the driving
licence of the driver, Bhola was brought on
record by the owner /appellant before the
tribunal. The vehicle owner never appeared
in witness box before the tribunal to prove
that the driving licence was given to him by
his driver, Bhola and he was satisfied that it
is genuine. He also did not proved that he
made efforts to see that the driver is
competent to drive. He was required to
prove before the tribunal that he had taken
reasonable care in employing the driver,
who was qualified and competent to drive
the vehicle. The liability as between the
insurer and the insured depends upon the
reasonable care taken by the owner of the
vehicle, while employing a qualified and
competent driver. These basic facts are
required to be proved by the owner of the
vehicle before the tribunal so as to protect
himself from the liability viz- a- viz
insurance company before the Motor
Accidents Claims Tribunal.

30. The insurance company in the
present case produced the Form-54 before
the tribunal which proved that the driving
5 All. Ram Shabad Yadav Vs. Harilal & Ors.
149
licence produced by the owner of the
truck/appellant was not of his driver, Bhola
but it was of another person, Krishna
Gopal. The owner of the truck/ appellant
clearly did not proved that his driver
supplied him fake/forged copy of the
driving licence since the driver of the
owner of the truck-appellant, namely,
Bhola, was not produced before the tribunal
to testify the correct facts.

31. Learned counsel for the
insurance company has rightly pointed out
to the judgment in the case of Pappu and
another(supra) wherein Apex court has held
that insurance company can be held liable
only when foundational facts are pleaded
and proved by the owner of the offending
vehicle by the owner of the truck/appellant
before the tribunal."

26. The argument on behalf of the
Insurance Company that the Form 54 was
not admissible in evidence is liable to be
rejected. The certified copy of Form 54
introduced as evidence by the Insurance
Company established that the driving
licence. The said document was not
successfully challenged and was rightly
found to be genuine by the learned tribunal.

27. The judgement of this Court in
Kedar
Singh
(supra)
quoted
the
judgement rendered by this Court in
Oriental Insurance Co. Ltd. Vs. Smt.
Poonam Kesarwani and others9 with
approval and held:

"16. ....The insurance company
on its part investigated the validity of the
driving licence(DL No. 2222/RJ/2005)
and consequently filed the report received
from the concerned R.T.O. under Form
54 before the tribunal. The bare perusal
of the report received on Form 54 would
go on to show that the driving licence no.
2222/RJ/2005 was issued in favour of one
Krishna Goapal and not in the name of
the alleged offending driver i.e, Bhola. As
such the photocopy of the driving licence
of
Bhola
filed
by
owner
of
the
truck/appellant was a fake document. It is
a settled proposition of law that Form 54
is a public document which does not
requires further evidence of formal proof
by examining a witness. It is further
submitted that this Court in paragraph
no.12 of Oriental Insurance Co. Ltd. Vs.
Smt. Poonam Kesarwani and others,
reported in 2009() ADJ,1 has held
accordingly:-

"Form 54 being a certified copy
of a public document namely the state
register of driving licencse, need not to
be proved by examining a witness. Once
a certified copy of the entries made in the
register maintained under Section 26(1)
read with Rule 23 is issued in form-54 it
is admissible in evidence under section
77 of the Evidence Act and no further
proof of form 54 by oral evidence by
examining witnesses is required."

17. The insurance company on
its part had duly discharged its burden by
filing Form-54(which has been held to be
a public document) which categorically
established
beyond
doubt
that
the
photocopy of the driving license brought
on record by the owner/appellant was a
fake document, as such, breach of policy
condition was fully substantiated for
which no liability whatsoever could have
been
fastened
upon
the
insurance
company /appellant."

28. The burden lies on the owner of
proving foundational facts including the
satisfaction of the authenticity of the
driver's
licence
prior
to
the
latter's
appointment.
This
burden
can
be
discharged in light of the standards and
150 INDIAN LAW REPORTS ALLAHABAD SERIES
criteria provided by authorities in point
discussed earlier.

29. However, in the wake of the
preceding discussion, this Court finds that
the owner had failed to establish the
aforesaid foundational facts. The owner did
not appear in the witness box to prove that
the driving licence of the driver was
produced before him and that he was
satisfied with its genuineness at the time of
the driver's appointment. Further, pleadings
entered by the owner-appellant before the
learned tribunal too are deficient in this
regard.

30. No case for interference in the
impugned award is made out. The appeal is
dismissed.
----------
(2023) 5 ILRA 150
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.05.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 238 of 2022

United India Insurance Co. Ltd., Lucknow
 ...Appellant
Versus
Smt. Sheela & Ors. ...Respondents

Counsel for the Appellant:
Tarun Kumar Misra

Counsel for the Respondents:
Raj Kumar Vishwakarma, Firoz Ahmad
Khan, Jagjit Sodhi

A. Civil Law - Motor Vehicle Act, 1988 -
Section 176-challenge to-claim-Tribunal
awarded a sum of Rs. 18,69,280/- in
favour of the claimant-the said award was
passed
against
the
Insurance
Company-the Insurance Company has
escalated the matter on the premise
that the driver of the offending Gas
Tanker did not have a valid and an
effective driving licence-Even though
the driver had a licencse but since it
did not have the requisite endorsement
as provided in Motor Vehicles Act
permitting
the
driver
to
drive
a
transportation
vehicle
carrying
dangerous/hazardous
goods-Hence,
the award is to be satisfied by the
Insurance Company qua the claimatrespondent
but
the
appellantinsurance
company
is
entitled
to
recover the amount from the owner of
the offending vehicle(insured)-Thus,
the Tribunal has erred in deciding the
issue and fastening the entire liability
on the Insurance company without
granting the right to recovery to the
insurer.(Para 1 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. NICL Vs Swaran Singh (2004) 3 SCC 297.

2. Gautam Filling Station Vs Munnu Singh & anr.
(2016) 34 LCD 1669.

3. Sibbal Singh Vs The United India Ins. Co. Ltd.
F.A.F.O. (Defective) No 378 of 2010

4. United India Ins. Co. Ltd. Vs Smt. Vimla Devi
& ors. F.A.F.O No. 845 of 2006 (2021 Latest
case Law 8677 ALL)

5. Oriental Ins. Co. Ltd. Vs Nanjappan &
ors.(2004) 13 SCC 224

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Tarun Kumar Mishra,
learned counsel for the appellant and Sri
Firoz Ahmad Khan, learned counsel for the
claimants-respondents no. 5 and 6. Sri
Jagjit Singh Sodhi, learned counsel for the
claimant-respondents no. 1 to 4