( 2025:HHC:18370 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 107 of 2013 Reserved on: 23rd May, 2025. Date of decision: 17th June, 2025 The United India Insurance Compay …Appellant Versus Vijay Kumar & others …Respondents Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes For the Appellant: Mr. J.S. Bagga, Advocate. For the Respondents: Mr. Rajan Kahol, Advocate for respondent No.1. Mr. Y.P. Sood, Advocate for respondents No.2 and 3. Vivek Singh Thakur, Judge This appeal has been preferred by Insurance Company against Award dated 28th September, 2012 passed by the Motor Accident Claims Tribunal-II, Una, District Una (in short ‘the MACT’) in Claim Petition i.e. MAC No.07 of 2010 titled Vijay Kumar vs. Shadi Lal and others, whereby the Insurance Company has been directed to pay compensation to claimant Vijay Kumar amounting to Rs.86,050/- along with interest at the rate of 7.5% per annum from the date of filing of petition till deposit of awarded amount. 2 ( 2025:HHC:18370 ) 2 Respondent No.1 is claimant. Respondents No.2 and 3 are owner and driver of vehicle No. HP-72-1151 respectively. 3 On 16.2.2009, at about 7 PM, 26 years old claimant Vijay Kumar, along with his friend, was going from village Basal to Manohar Market, Charola on the motorcycle bearing Registration No.CH-03E-7027 being driven by claimant. When they reached at village Nari (near Baba Rudra Nand Mandir), a Mahindra Jeep bearing Registration No. HP-72- 1151, owned by respondent No.2 Shadi Lal and being driven by respondent No.3 Ram Kumar driver, rashly and negligently hit the motorcycle causing injuries to the claimant. Claimant was taken to the Civil Hospital, Una and due to his critical condition, after giving first aid treatment, he was referred to the PGI Chandigarh, where he remained admitted from 16.2.2009 to 23.2.2009. Thereafter, he remained under treatment as an indoor patient from 23.2.2009 to 20.3.2009 in DMC Ludhiana. It was claimed that claimant had spent Rs.1,15,000/- for his treatment in different hospitals also, and after the discharge from hospital, he suffered physical and mental pain. 4 At the time of accident, as claimed, victim was working as Munshi/Accountant and was earning Rs.5000/- per month, but on account of accident, he was not able to do his job, and besides this, his marriage prospects were also affected adversely due to injury. 5 With respect to accident, FIR No. 65 of 2009 dated 16.2.2009 was also registered in Police Station Sadar Una. 3 ( 2025:HHC:18370 ) 6 In aforesaid facts and circumstances, claimant filed the claim petition before the MACT. After considering the pleadings of parties and evidence led by them, the MACT has awarded the compensation to claimant, as stated supra. 7 Being aggrieved by Award, present appeal has been preferred by Insurance Company mainly on the ground that driver of Jeep was not having valid driving licence to drive the vehicle i.e. Mahindra Jeep No. HP-72-1151. 8 Additional ground taken in appeal is that amount of compensation determined by the MACT is on higher side. 9 It has been contended by learned counsel for appellant that Insurance Company is not liable to pay any compensation in present case for breach of terms of Policy as the vehicle i.e. Mahindra Jeep was being driven by a person having invalid and fake licence. Further that, if it is found that Insurance Company is liable to pay then quantum of compensation is on higher side and it deserves to be reduced. 10 Per contra, learned counsel for respondents, i.e. claimant and driver as well as owner, have supported the impugned Award for the reason stated therein. 11 Learned counsel for owner and driver has also submitted that driver of Mahindra Jeep was having valid driving licence and before employing him as driver, the owner had taken care and precaution to see the driving licence and test of the driving skill to drive the vehicle and as 4 ( 2025:HHC:18370 ) there was no dereliction of duty or breach on the part of owner, regarding verification of driving licence and skill of driving of driver, the owner and driver are not liable to pay compensation but it is Insurance Company which is duty bound to indemnify the insured i.e. owner of vehicle. 12 Learned counsel for Insurance Company has submitted that the MACT has failed to consider the documents on record which indicate that driver of Mahindra Jeep was not having valid driving licence as it has been reported by Assistant Regional Transport Officer, Baramulla, Headquarter Sopore, wherefrom licence of driver has been claimed to have been issued, that no such licence in the name of driver was issued as per available record of the said Office. 13 Learned counsel for Insurance Company has submitted that apart from aforesaid letter of Assistant Regional Transport Officer Baramulla, a verification report of Surveyor of the Company namely Mohammad Shafi Dar, is on record wherein he has reported that licence was not issued from Assistant Regional Transport Office Baramulla but it appeared to have been issued from Himachal Pradesh. 14 Learned counsel for Insurance Company has submitted that aforesaid documents should have been taken into consideration by the MACT and, in such eventuality, the conclusion would definitely have been drawn that driver of Mahindra Jeep was not having valid driving licence to drive the vehicle in reference. 5 ( 2025:HHC:18370 ) 15 Referring para 20.8 of the pronouncement of the Supreme Court in Vimla Devi and others vs. National Insurance Company Limited and another reported in (2019)2 SCC 186, learned counsel for Insurance Company has submitted that though documents have not been exhibited, however, in proceedings before the MACT, the documents on record, even not exhibited, are to be taken into consideration for determining the liability to pay the compensation. Para 20.8 of aforesaid judgment reads as under:- “20.8 Seventhly, if the Court did not exhibit the documents despite the appellants referring to them at the time of recording evidence, even in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.” 16 Learned counsel for owner has submitted that owner of vehicle appearing in witness box as RW2, in his examination-in-chief, placed on record by way of affidavit, has categorically stated that before employing the driver, he had checked the licence of driver and had also verified the skill of driving in a test drive of the vehicle and further that there is valid Insurance Registration Certificate, Permit and timely tax payment of vehicle and, therefore, the Insurance Company, in case of 6 ( 2025:HHC:18370 ) liability of owner of vehicle, shall be duty bound to indemnify him. Therefore, referring judgment in National Insurance Co Ltd. vs. Swaran Singh and others, reported in (2004)3 SCC 297; and Pepsu Road Transport Corporation vs. National Insurance Company, reported in (2013)10 SCC 217, it has been contended that owner has performed his duty and therefore, Insurance Company is liable to pay the compensation to claimant Vijay Kumar. 17 Para 10 of Pepsu Road Transport Corporation’s case reads as under:- “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 7 ( 2025:HHC:18370 ) 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.” 18 In present case, Insurance Company has examined only one witness RW1 Rajan Guleria, Junior Assistant from Office of Registration and Licensing Authority, Una Himachal Pradesh, who has proved on record the renewal of driving licence of Ram Kumar who was driver of Mahindra Jeep from 10.6.2009 to 9.6.2012, copy of driving licence Ext.RW1/A and report Ext.RW1/B issued by the Registration and Licensing Authority Una. In his statement, he has categorically stated that original licence was issued by Licensing Authority, Baramulla and it was renewed by Registration and Licensing Authority Una. In cross examination, he has submitted that before renewal of any licence, communication is made to the Licensing Authority, which had issued licence previously and after satisfaction of genuineness of licence, driving licence is renewed. He has admitted that licence of Ram Kumar driver 8 ( 2025:HHC:18370 ) was valid for driving Heavy Transport Vehicle. Insurance Company, through this witness, has also proved on record the extract of driving licence Ext.RW1/B issued by Registration and Licensing Authority Una wherein it has been verified that date of issuance of licence was 16.11.2005 and it was valid to drive the transport vehicle upto 9.6.2012 and further that it was valid for driving public service vehicle i.e. Bus. There is no other evidence produced by Insurance Company on record. 19 Plea of learned counsel for Insurance Company, with respect to consideration of documents on record, which were not exhibited is misconceived because in Vimla Devi’s case it has been held by the Supreme Court that documents not exhibited by the Court, despite the witness referring the same at the time of recording the evidence, have to be taken into consideration. Whereas in present case, the only witness examined by Insurance Company is RW1, who, in his statement, has nowhere referred the letter issued by Assistant Regional Transport Authority, Baramulla or the report of Surveyor in his statement. Therefore, there is no document on record, referred in evidence of Insurance Company but not exhibited. Here, the documents, though, are on record, but never referred by Insurance Company either in pleadings or in evidence led by it. 20 The communication purported to be sent by Assistant Regional Transport Officer, Baramulla is addressed to the District Judge. It has also not been proved on record that this communication was 9 ( 2025:HHC:18370 ) genuine and actually issued by the concerned Authority to the MACT. There was no occasion for concerned Authority to communicate the letter to MACT directly especially when no such inquiry was requested or communication was sent by the MACT to Assistant Regional Transport Authority, Baramula to supply information/verification about issuance of licence in reference. 21 Insurance Company has not taken pain even to examine its Surveyor namely Mohammad Shafi Dar or any other Officer or official referring aforesaid documents or to exhibit these documents before the MACT, which are being referred in arguments. Therefore, this document cannot be looked into and thus, plea of Insurance Company in this regard is rejected because ratio of judgment in Vimla Devi’s case is not applicable in given facts of the present case. 22 Documents neither pleaded nor referred in evidence, and not exhibited can never be taken into consideration for determining the claim and liability during adjudication of claim petition before the MACT. Document sent to the Presiding Officer or the Tribunal directly, without any request by the MACT for sending such document, is also liable to be ignored particularly when the Insurance Company has failed to perform its duty to prove that the said document was genuine and was sent by concerned Authority. 23 Otherwise also, present case is a claim of third party. It has come in evidence of owner of vehicle, which is not disputed in cross- 10 ( 2025:HHC:18370 ) examination, that owner, before employing the driver, had taken due care and caution as stated by him in his deposition as well as in reply that he had stated that he had verified the licence and had also verified the skill of driving in a test drive. Thus, in view of judgments passed in Swaran Singh’s and Pepsu Road Transport Corporation’s cases, Insurance Company is liable to pay compensation to third party as there is no breach of term or dereliction of duty cast upon the owner at the time of engaging the driver. 24 Though it has been claimed that compensation has been awarded on higher side but nothing material could be referred in this regard. 25 I have gone through details of compensation awarded by the MACT and I am of considered opinion that reasonable, just and fair compensation has been determined and awarded by the MACT. 26 In view of above discussion, I do not find any illegality, irregularity or perversity in award passed by the MACT. Accordingly appeal is dismissed being devoid of any merit. Pending miscellaneous application(s), if any, also stand disposed of. (Vivek Singh Thakur), Judge. 17th June, 2025(MS)