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2005 DIGILAW 273 (HP)

MOHI RAM v. SURAT RAM

2005-08-08

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.—This judgment shall dispose of five appeals, being FAOs (MVA) No. 119, 121, 125, 126 and 133 of 1999, as they arise out of the same accident and the same award, and a similar question is involved in all these appeals. 2. The facts necessary for the disposal of these appeals that the appellant Mohi Ram (in all the appeals) is the owner of jeep No.HP-08-0039. On 10.7.1996, deceased Shukru, Smt. Poshi, Yash Pal, Kharak Bahadur, 3mt. Amrita Devi, Kumari Subhadra, Om Prakash and injured Kul Prashad hired the aforesaid jeep on payment of Rs. 800/-. They had to go to Chuhardhar Temple and return to Chupal. After visiting the temple on the return journey the jeep met with an accident and went off the road. A number of persons died in the accident and some suffered injuries. One common claim petition was filed claiming compensation on account of death of Shukru, his wife Poshi and son Yash Pal. The claim petitions were also filed with regard to the other victims. 3. Initially, in the claim petitions Rajinder Singh @ Raju son of Surat Singh, resident of village Motibagh, P/o Malog, Tehsil Shimla, was shown to be the owner-cum-driver of the vehicle. It would be pertinent to mention that he is the grand-son of Mohi Ram-appellant. On 7.1.1997, an application was filed by Rajinder Singh for striking off his name from the array of the respondents. In this application it was alleged that Rajinder Singh was neither the owner of the vehicle nor the driver thereof. The Insurance Policy of the vehicle was also given and the name of the Insurance Company disclosed in this application. It would be pertinent to mention that this application was not even signed by Rajinder Singh nor there was any affidavit in support of this application. How this application was entertained and allowed by then Presiding Officer of the Motor Accident Claims Tribunal remains unexplained. On the same day, the claimants filed an application wherein they stated that on 22.11.1996, respondent Rajinder Singh had put in appearance and stated that he was neither the owner nor the driver of the vehicle. The claimants, therefore, by means of the said application prayed that Mohi Ram and Rajinder Singh be impleaded as respondents No. 3 and 4. On the same day, the claimants filed an application wherein they stated that on 22.11.1996, respondent Rajinder Singh had put in appearance and stated that he was neither the owner nor the driver of the vehicle. The claimants, therefore, by means of the said application prayed that Mohi Ram and Rajinder Singh be impleaded as respondents No. 3 and 4. They made it clear that according to them it was respondent Rajinder Singh son of Surat Ram who was driving the vehicle and not the other Rajinder Singh. However, with a view to avoid any technical objection they were moving this application. Surprisingly, vide order dated 13.3.1997 the Tribunal not only allowed the addition of the parties but also ordered the deletion of the name of Rajinder Singh son of Surat Singh. This order was totally illegal and the deletion of the name of Rajinder Singh could not have been ordered since according to the claimants he was driving the vehicle. The learned Counsel, who was appearing for Rajinder Singh son of Surat Singh, made a statement that he would also put in appearance for the newly added respondents. However, reply on behalf of respondent No. 2 was not filed Respondent No. 2 was served through his uncle and was proceeded ex-parte. On 18.7.1997, all the five petitions were consolidated and common issues were framed. 4. The Insurance Company took up the plea that it was not liable since the driver did not have the valid driving licence and that the vehicle was actually being driven by Rajinder Singh son of Surat Singh and not Rajinder Singh son of Pratap Thakur. It also took up other pleas. 5. The Tribunal vide a well reasoned and detailed award dated 2.12.1998 came to the conclusion that Rajinder Singh, who was impleaded as respondent No 2, is an imposter and he has been introduced at the instance of the owner of the vehicle to shift the liability on to the Insurance Company. In this behalf, it would be pertinent to refer to the FIR Ex.R-11 which was recorded on 11.7.1996 one day after the accident. In this the name of the driver is given as Rajinder Singh @ Raju. From the reading of the evidence, what can be inferred is that Rajinder Singh son of Surat Singh who was initially impleaded as the driver is also known as Raju. In this the name of the driver is given as Rajinder Singh @ Raju. From the reading of the evidence, what can be inferred is that Rajinder Singh son of Surat Singh who was initially impleaded as the driver is also known as Raju. There is nothing on record to show that Rajinder Singh Thakur son of Paras Ram is known as Raju. 6. Two of the injured persons, Minakshi (PW-2) and Kul Prashad (PW-5), appeared in the witness box. The owner and the driver in the cross-examination did not ask any question as to whether it was Rajinder Singh son of Surat Singh or Rajinder Singh son of Pratap Singh who was driving the vehicle. These two witnesses were the local person who had hired the vehicle. They knew both Mohi Ram and his grand-son Raju. Initially, in the claim petition they had shown that Rajinder Singh son of Surat Singh and grand-son of Mohi Ram was the driver. In their evidence, no suggestion was put to them that Rajinder Singh son of Surat Singh was not driving the vehicle. 7. The owner in his reply averred that, in fact, one Rakesh Kumar, grand-son of Mohi Ram, was to go to the temple. The jeep was taking him to the temple and on the return journey the Gorkhas were given a lift. One Rajesh Kumar has stepped into the witness box to support this version. His evidence does not inspire confidence. According to him, when all the other persons were sitting inside the vehicle he was standing outside. When the vehicle was to be started there was no reason why he would have been standing outside the vehicle if he was actually travelling in the vehicle from Chopal to Chuhardhar and back. His statement is also inconsistent with the statements of PW-3 and PW-5 who have clearly stated that they had hired the vehicle on payment of Rs. 800/-. No suggestion was put to these witnesses that Rajesh Kumar was present at the time when the accident took place or that he was standing outside the jeep. The presence of Rajesh Kumar is very doubtful. 8. From the evidence, it can be deduced that the vehicle in question was being driven by Rajinder Singh @ Raju son of Surat Singh the grandson of the appellant. The presence of Rajesh Kumar is very doubtful. 8. From the evidence, it can be deduced that the vehicle in question was being driven by Rajinder Singh @ Raju son of Surat Singh the grandson of the appellant. Realising that he did not have a valid driving licence, Rajinder Singh son of Pratap Singh was introduced by the owner as the driver of the vehicle. 9. The Tribunal has noted that the driving licence of Rajinder Singh son of Pratap Singh is apparently forged. The Tribunal retained the original driving licence. I have perused the original driving licence which is on record. On the face of it, it is a forged driving licence. The name of one Fnder Singh Thakur has been changed to read as Rajinder Singh Thakur. It is also quite apparent that even the photograph on this licence has been changed. It is apparent that this licence does not belong to Rajinder Singh who has now been introduced as the driver of the vehicle. The Insurance Company had got the licence issued in favour of Rajinder Singh Thakur investigated. The report of the Licensing Authority was that, in fact, no licence had been issued in favour of Rajinder Singh and that on 1.3.1983 a licence had been issued in favour of Inder Singh. RW-2 has also stated this fact. Surprisingly, RW-6 Ahilya, Senior Clerk from the office Registering and Licensing Authority, Shimla (Urban) states that on perusal of the register regarding driving licenses, licence No. 366/SML/83 has been renewed in the name of Rajinder Singh from 23.11.1993 to 22.11.1996. In cross-examination, she stated that the renewal is done without consulting the original record pertaining to the issuance of driving licence and it is done by just looking at the licence, produced at the time of renewal. 10. As observed above, the licence, on the face of it, was forged and the name Inder Singh changed to Rajinder Singh. The photograph also appears to have been changed lateron. It is, thus, clear that all this was done with the connivance of the owner of the vehicle with a view to shift the burden on the Insurance Company. The Tribunal had rightly held that it was Rajinder Singh son of Surat Singh, grand-son of the owner, who was driving the vehicle and not Rajinder Singh son of Paras Ram. It is, thus, clear that all this was done with the connivance of the owner of the vehicle with a view to shift the burden on the Insurance Company. The Tribunal had rightly held that it was Rajinder Singh son of Surat Singh, grand-son of the owner, who was driving the vehicle and not Rajinder Singh son of Paras Ram. Even if, it is assumed that it was Rajinder Singh son of Paras Ram who was driving the vehicle, then also the insured cannot escape his liability. The licence on the face of it appears to be forged. It has been proved that the original licence was in the name of some other person. It is clear to the naked eye that the photograph on the licence had been changed. Mere renewal in the name of Rajinder Singh shall not clothe a fake licence with validity. (See : New India Assurance Co. Ltd. v. Kamla Devi and others, 2001 ACJ 843). 11. In view of the above facts, it has to be held that the insured is liable to pay the compensation. 12. Mr. Rajan Kahol, learned Counsel appearing on behalf of the claimants, submits that even if it is held that the Insurance Company has proved that there is breach of policy on the part of the insured, the Insurance Company should be directed to pay the amount of compensation to the claimants and may be held entitled to recover the said amount from the insured. In this behalf, he placed reliance on the judgment of Apex Court in National Insurance Company Ltd. v. Swaran Singh, 2004 ACJ 1. The ratio of the said judgment, relevant to the present case, reads as follows : “102(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 where for 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 circumstances of each case. (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 circumstances of each case. (x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149 (2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal." 13. In view of the directions given by the Apex Court in sub-para (x) of para-102 in the Swaran Singhs case (supra), it would be appropriate to direct that the Insurance Company should first pay the amount and then recover the same from the insured. At the bar I have been informed that during execution proceedings the insured has already deposited some amounts. The Insurance Company after deducting the amounts deposited by the insured in the execution proceedings shall deposit the remaining compensation before the Tribunal within six months from today. Thereafter, it shall be entitled to recover the amount from Mohi Ram and his estate, in terms of the directions given by the Apex Court in Swaran Singhs case (supra). 14. No other point has been urged before me. 15. In view of the above discussion, all the appeals are dismissed subject to the directions given above. Since the appellant has taken a totally false plea and is guilty of trying to introduce false documents, he is burdened with cost of Rs. 3,000/- in each of the appeals i.e. Rs. 15,000/- in all. 15. In view of the above discussion, all the appeals are dismissed subject to the directions given above. Since the appellant has taken a totally false plea and is guilty of trying to introduce false documents, he is burdened with cost of Rs. 3,000/- in each of the appeals i.e. Rs. 15,000/- in all. Costs shall be paid to the claimants. 16. The manner in which the fake driving licence was renewed in this case leaves much to be desired. It is obvious that someone in the office of the Registering and Licensing Authority, Shimla (Urban) was hand in glove with the appellant. There are a number of cases which have come before this Court in which driving licenses are issued or renewed in a negligent manner, actually one can go so far as to say in a criminal manner. Cases have come before this Court where the licence has been renewed in favour of a dead person or endorsement to drive a transport vehicle has been made after the licence holder is dead. One of these cases relates to the Registering and Licensing Authority, Shimla (Rural). It is high time that this practice is stopped. 17. The issuance or renewal of a driving licence is not a paper formality. This licence permits a person to drive a motor vehicle. The lives of innocent people are put to risk in case the licence is granted without holding a test or complying with the provisions of the Motor Vehicles Act, 1988 and the Rules framed there under. The Secretary (Transport) is directed to ensure that all the Registering and Licensing Authorities issue and renew the driving licenses strictly in accordance with the provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder after testing the applicants and following the requisite procedure. He shall issue necessary directions in this regard to all the Registering and Licensing Authorities in Himachal Pradesh within three weeks of the receipt of this judgment. The Registry shall send a copy of this judgment to the Secretary (Transport) to the Government of Himachal Pradesh forthwith for due compliance. 18. The Secretary (Transport), Government of Himachal Pradesh shall file an affidavit of compliance in this Court within three weeks of the receipt of the copy of the judgment. The Registry shall send a copy of this judgment to the Secretary (Transport) to the Government of Himachal Pradesh forthwith for due compliance. 18. The Secretary (Transport), Government of Himachal Pradesh shall file an affidavit of compliance in this Court within three weeks of the receipt of the copy of the judgment. All the Registering and Licensing Authorities in Himachal Pradesh shall also file their affidavits stating that they have received the instructions and that in future the licenses shall be issued and renewal strictly in accordance with the provisions of the Motor Vehicles Act and the Rules framed thereunder, within three weeks thereafter. 19. All the five appeals are disposed of in the aforesaid terms. Appeal dismissed.