K.KANNAN, J. - (1.) THESE appeals are connected. FAO Nos. 1497 and 1523 of 1993 are at the instance of the insurance company challenging the issue of liability and seeking for recovery right against the owner and the driver on a plea that the driver did not have a valid driving licence. FAO No. 49 of 1994 is for enhancement at the instance of the claimant for the assessment to compensation for death of a male aged 32 years. There is also a cross - objection filed for the same relief in FAO No. 1523 of 1993.
(2.) THIS court had allowed for examination of the licensing authority and the driving licence particulars from DTO Kamrup, Guwahati. The Commissioner had collected evidence after serving notice on both the parties and had recorded that the licence relied on by the driver was fake and it was not issued by any competent authority. There is no justification for exclusion of liability on a finding that the licence was fake. The insurance company which was made liable for compensation ought to have also the benefit of recovery, after satisfying the claim, from the owner and the driver.
(3.) LEARNED counsel appearing on behalf of the driver has an argument before this court that the accident itself had not taken place and the finding in that regard cannot be accepted. Both the counsel for the claimants as well as the insurance company have an objection brought at the preliminary stage to point out that there is already a liability cast on the driver as a person who caused the accident and without even preferring any appeal this point cannot be urged. When the Tribunal has given a finding that the driver had been involved in the case and it was his driving that caused death and injury and has passed the award only against the insurance company and, therefore, it was not to be taken that the driver could be aggrieved by the award itself. If there was any adverse finding against him, I will take that he will have an appropriate opportunity to state that the finding against him could not have been rendered in the manner it was done. Even otherwise, the powers of the court under Order 41 Rule 33 CPC are sufficiently wide to allow for a consideration of a fact in issue by giving an opportunity to the respondent to point out that the particular finding rendered against him is not correct.;