Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay FMA 1268 of 2017 Tata AIG General Insurance Company Limited Versus Sk. Hossain Ali @ Nayan Sk. & Anr. For the appellant/insurance Co. : Mr. Rajesh Singh For the respondent No.1/claimant : Ms. Sima Ghosh Heard & Judgment on : 22nd January, 2025 Ananya Bandyopadhyay, J: 1. The Learned Advocates representing the respective parties are present. 2. The instant appeal has been filed against the judgment and award dated 7th March, 2017 passed by the Learned Judge, Motor Accident Claims Tribunal, Fast Track Court, Suri, Birbhum in M.A.C. Case No. 145 of 2015. 3. An application under Section 166 of the Motor Vehicles Act, 1988 had been filed by the injured claimant who incurred in an accident on 23.05.2015 at about 9.00 a.m. on pitch road near Raipur Toll Tax under the jurisdiction of Md. Bazar Police Station, District Birbhum, on returning to his house from Raipur Toll Tax being hit the offending vehicle being a ten wheeler bearing registration No. WB/53B/4108 which ultimately resulted in an amputation of his left arm, having sustained permanent disability to the extent of 80%. 4. The Learned Advocate representing the appellant/insurance company submitted the victim did not suffer any loss of income in 2 view of the deposition of P.W.3 who stated that the victim used to earn of Rs. 5200/- prior to the accident and subsequently through he suffered consequences of the accident received a sum of Rs. 4000/- being an employee at Raipur Toll Tax gate. The Learned Advocate representing the appellant/insurance company argued that the appellant/claimant did not suffer any loss of earning. Therefore, he was not entitled to the sum of Rs. 6,23,539/- as awarded by the Learned Tribunal. 5. The Learned Advocate representing the appellant/insurance company further submitted contrary to the statements of O.P.W. No.1 being the staff of the RTO, Birbhum and the O.P.W. No.2 the driver of the offending vehicle. The O.P.W. 1 stated that the driving licence in question was faked whereas the OPW No.2 stated to be possessing a valid driving licence. The Learned Tribunal in absence of proper evidence concluded the driver to possess valid licence to the detriment of the appellant/insurance company. Therefore, in view of the decisions of the Hon’ble Supreme Court the appellant/insurance company was entitled to recover the compensation award after payment by the same. 6. The Learned Advocate representing the respondent No.1/claimant submitted that the victim having suffered 80% of permanent disability is entitled to be considered for disablement to the extent of 100 per cent instead of 80 per cent and the component concerning mental pain and agony, the medical expenses etc. should be enhanced. The Learned Tribunal while pronouncing the impugned judgment and order inter alia observed as follows: “It appears from the testimonies of petitioner’s witnesses and exhibited documents that the petitioner sustained the injuries due to accident caused by rash and negligent driving of the 3 driver of the offending vehicle no. WB.53B/4108 and accordingly the petitioner is entitled to get just and adequate compensation from the owner and insurer of the said offending vehicle. It appears from the evidence on record that the offending vehicle No. WB.53B/4108 was duly insured with the OP no. 2 the Tata AIG General Insurance Company Ltd. on the date of accident and accordingly the OP no. 2 the Tata AIG General Insurance Company Ltd. is required to pay compensation to the petitioner on behalf of the owner of the vehicle. It has been contended by the ld. Advocate for the OP no.2 Tata AIG General Insurance Company Ltd. that as per police papers one Minarul Hossain was the driver of the offending vehicle no. WB.53B/4108 at the time of accident and according to seizure list of the police case (Exbt. 2) the D.L. no WB53-810932 valid upto 15.05.2016 in the name of Minarul Hossain was seized in connection with the police case over the incident. It has been contended by the Ld. Counsel for OP No. 2 that the said driving licence no. WB53-810932, as per evidences of OPW-1 Satyanarayan Das and D.L. particulars (Exbt.-A), in fact stands registered in the name of one Ashim Ghosh with the Licencing Authority, Birbhum. The Ld.counsel submitted that the driving licence which was seized by police in respect of driver Minarul Hossain was in fact a fake licence and accordingly there was a violation of the terms and conditions of the policy and accordingly OP no. 2 is not liable to pay compensation to the petitioner in this case on behalf of the owner of the offending vehicle. Having considered the evidence on record particularly the evidence of OPW-1 Satyanarayan Das, OPW-2 Minarul Hossain and exhibited documents I find that OP no. 2 has failed to prove its allegations regarding the fakeness of the driving licence of the driver of the offending vehicle. The OPW-2 Minarul Hossain is the driver of the offending vehicle no. 2 WB-53B-4108. This witness has categorically stated that he obtained his driving licence from Suri Motor Vehicle Office through a muhuri known as Tubul, since deceased. He has categorically denied that his driving licence was not standing in his name. He also denied that he was driving the vehicle no. WB-53B-4108 at the time of accident with the fake driving licence. He has stated that he is unable to recollect the number of his driving licence which was seized by the police after the accident. In his cross- examination he has categorically stated that he obtained his driving lincece after giving the 4 driving test before the R.T.O. Birbhum. He has stated that he initially got one learner’s licence and thereafter a light vehicle licence and thereafter a medium vehicle licence and finally got a heavy vehicle licence. In his cross- examination he has categorically stated that he had valid driving licence to drive a heavy transport vehicle like the lorry no. WB-53B- 4108. This testimony of OPW-2 Minarul Hossain i.e. the driver of the offending vehicle is very clear and categorical one and he has vividly denied the allegation of fakeness of his driving licence. The evidence of OPW-2 shows that he obtained the driving lincence from R.T.O. Birbhum after giving driving test fro the same and his driving licence was duly upgraded from learner’s licence to heavy vehicle licence in course of time. On the other side the OPW no.1 Satyanarayan Das who is a staff of R.T.O. Birbhum has merely stated that the D.L. no. WB53-810932 was issued in favour of one Ashim Ghosh and was valid upto 05.05.2016 and he has exhibited one driving lincence particularly concerning licence no. WB53-810932 as Exbt.A. This witness has stated in his cross examination that he was not asked to produce the driving licence particulars of Minarul Hossain and so he was unable to state whether Minarul Hossain hold any valid driving licence or not issued from R.T.O. Birbhum. It is true that seizure list(Exbt.2) shows that one D.L. in the name of Minarul Hossain vide D.L. No. WB53-810932 was seized by police and the said driving licence number, as per driving licence particulars (exhibit-A), stands registered in the name of one Ashim Ghosh and not in the name of Minarul Hossain. But this fact is not enough to prove that the driving licence of Minarul Hossain was fake one. The possibility of wrong recording of the number of the driving licence of Minarul Hossain in the seizure list or in the M.V. Registers cannot be ruled out. The original driving licence and the original M.V. Registers have not been produced and proved before this court. The evidence on record shows that no criminal proceedings has been initiated either by police or by anyone else against the driver Minarul Hossain for the alleged fakeness of his driving licence. The holding of a fake driving licence is a criminal offence and such allegation cannot be proved by mere raising of some disputes as has been raised by insurance company in his case. The insurance company cannot avoid its liability just by raising some disputes regarding the genuinity of driving licence. According to provisions contained u/s 5 149(2) M.V. Act the insurance company can avoid its liability towards payment of compensation only when the owner of a vehicle has deliberately and with knowledge allowed his vehicle to be driven by an unlicenced person or by a person holding a fake licence. So the knowledge of the owner about fakeness or invalidity of the drivin g licence of his driver is a must to prove the polication of the terms and condition of policy as enumerated u/s 149(2) of M.V. Act but in the instant case no such evidence has been adduced from the side of OP no.2. it is also clear from the evidence on record that OP no.2 has failed to prove the alleged fakeness of the driving licence too. Considering all the above aspects and evidence on record I find that OP no. 2 has failed to prove any violation of the provisions of Section 149(2) of M.V. Act on the part of the owner of the vehicle and as such Op no.2 cannot avoid its liability towards payment of compensation to the petitioner on behalf of the owner of the offending vehicle”. 7. The Learned Tribunal did consider that the insurance Company could not avoid its liability in accordance with the Section 149(2) of the Motor Vehicles Act, however, relied on the deposition of the O.P.W. 2 who also could not prove the driving licence possessed by him was genuine. There had been a dichotomy and ambiguity in the statement and the evidence adduced by OPW. No.1 and OPW. 2 in absence of original driving licence and original MV register being produced in evidence by either of the parties. Under such circumstances, the appellant/insurance company is to pay the awarded compensation and thereafter, recover the same from the owner on proof of the driving licence possessed by the O.P.W.2 to be fake, invalid and ineffective on the date of the accident. The Learned Tribunal has rightly assessed the compensation awarded and this Court is not inclined to interfere with the same. 8. It was further submitted by the Learned Advocate for the appellant/insurance company that the Appellant/Insurance Company 6 had deposited two distinct cheques i.e. 25,000/- and Rs. 7,14,984/- respectively. 9. The respondent Nos. 1 and 2/claimants are entitled to receive the balance amount of Rs. 6,23,539//- along with interest at the rate of 9% per cent per annum from the date of filing of the claim application till the date of actual realization. 10. The office of the Registrar General, High Court, Calcutta shall encash the cheques and thereafter disburse the entire awarded amount so deposited along with accrued interest to the present respondent No.1 /claimant as mentioned in the award passed by the learned Judge, Motor Accident Claims Tribunal, Fast Track Court, Suri, Birbhum, in M.A.C. Case No. 145 of 2015 within four weeks from the date of passing of this order, on proof of proper identification of the respondent Nos.1 /claimant subject to payment of ad valorem Courts fees. 11. The instant appeal is disposed of accordingly. 12. The interim order if any stand vacated. 13. The TCR be sent down to the concerned Tribunal forthwith. 14. Copy of the order be sent to the Department as well as the concerned tribunal as expeditiously as possible. c.m. Ar. ct. (Ananya Bandyopadhyay, J.)