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2004 DIGILAW 235 (HP)

National Insurance Co. Ltd. v. Pushpa Devi

2004-09-22

V.K.GUPTA

body2004
JUDGMENT : V.K. Gupta, J. In this appeal filed by the appellant Insurance Company under Section 173 of the Motor Vehicles Act, 1988 against the judgment and Award dated 15th December, 1994 passed by the learned Motor Accident Claims Tribunal (2) Solan Camp at Nalagarh in Claim Petition No.l-NL/2 of 1992 the appellant Insurer has challenged the Judgment and Award on two grounds and both the grounds relate the appellant's attempt to absolve itself of its liability to pay the Award amount. The first ground of attack is that since the deceased at the time of the accident was being carried in the bus on its roof, the appellant is not liable to indemnify and secondly at the time of the accident, the driver of the offending bus did not possess a valid driving licence. 2. In so far as the first ground of attack is concerned, even if the deceased was being carried on the roof of the Bus at the time of the accident, this by itself cannot absolve the appellant of its liability to pay the award amount because no such defence is available to the appellant under Section 149 (2) of the Motor Vehicles Act, 1988. 3. In so far as the second ground of attack is concerned Mr. Deepak Bhasin learned counsel appearing for the appellant has drawn my attention to the statements of RW-1 and RW-2 recorded on September 12, 1994 by the Tribunal and has submitted that a combined reading of the statements of these two witnesses clearly suggest that the appellant did make a very serious attempt to prove that the driver did not possess a valid driving licence. I have read the impugned Judgment and Award and find that unfortunately the Tribunal did not make any reference to the aforesaid evidence and went by a very peculiar proposition of law propounded by him that because the driver was employed by Haryana Roadways/State of Haryana, he was presumed to be possessed of a valid driving licence. 4. To grasp the total untenability of this proposition of law, let us see what the Tribunal observed with respect to this aspect of the matter in the impugned judgment. 4. To grasp the total untenability of this proposition of law, let us see what the Tribunal observed with respect to this aspect of the matter in the impugned judgment. The observations run thus: "The insurance company have tried to prove that respondent No.3 was not having valid driving licence, therefore, they were not liable, but respondents No.1 and 5 had employed respondent No.3 into the permanent service of the roadways after performing all the codal formalities, therefore, it cannot be said that deceased-driver was not having valid driving licence or he was imperfect driver. Issue No.2 is accordingly disposed of. 5. I must say very candidly that the Tribunal adopted a view unknown to law, because there is absolutely no presumption in law that merely because a person might have been employed as a driver by a Government owned Transport Corporation or even by a regular department of the Government, he would be possessed of a valid driving licence at a particular point of time. Yes, one may perhaps argue that one may presume that as on the date of entry in the service of a Government department or Government organisation as a driver, such a person should be presumed to be possessed of a driving licence (even though such a presumption also is not available in law) but this presumption also cannot be stretched to such an extent that years and decades after entry into service, at the time of an accident, such a person would still be possessed of a valid driving licence. I am saying so because even if such a person would have been possessed of a valid driving licence at the stage of entry into service of a Government department or Government organization, one cannot rule-out the possibility of the licence having expired after entry into service or the person having been disqualified to hold a licence owing to any act of omission or commission on his part, resulting in such a disqualification. The proposition of law propounded by the learned Tribunal, therefore, is wholly untenable and cannot at all be valid. 6. The proposition of law propounded by the learned Tribunal, therefore, is wholly untenable and cannot at all be valid. 6. By now, it is well-settled proposition of law that even if the driver did not told a valid driving licence at the time of the accident, the Insurer is liable to pay the award amount to the claimants but in turn it is entitled to recover the said amount tom the Insured owner of the Bus in question. Since in the present case, the Tribunal has returned a wrong finding about the driver being possessed of a valid driving licence only on a presumption of law which I have not approved, setting aside that finding permit the appellant to take steps, if so advised for a de novo inquiry into the matter by the Tribunal so that if ultimately the Tribunal holds that the driver in fact was not possessed of a valid driving licence at the time of the accident, he appellant-Insurer would be entitled to recover the award amount from the insured-owner of the vehicle in question. It however goes without saying that in the meanwhile the appellant would be under a liability to pay the entire award amount to Hie claimants. 7. The appeal according is dismissed with the aforesaid observations and serving the appellant the aforesaid liberty. 8. Whatever amount the appellant has deposited in this Court or whatever mount is lying in this Court shall be made over to the claimant in terms of the ward. 9. Cross Objection No. 153/96 Heard. Dismissed. CMP No. 247/95. 10. In view of the disposal of the appeal this application has become infructuous.