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2005 DIGILAW 369 (HP)

UNITED INDIA INSURANCE CO. LTD. v. SAVITRI DEVI

2005-10-03

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J. (Oral) - This appeal by the Insurance Company under Section 173 of the Motor Vehicles Act is directed against the award of the learned Motor Accident Claims Tribunal, Bilaspur in MAC Case No. 36 of 1999, decided on 4.5.2000. 2. The claimants who are the widow and children of deceased Dila Ram filed a claim petition under Section 166 of the Motor Vehicles Act in which it was alleged that on 9.11.1998 at about 6 p.m. deceased was hit by tractor No.: HP 24-8472 and fell into the khud and died. 3. The owner and driver filed a common written statement in which the factum of the accident was denied. According to the owner and driver on accident with their tractor had taken place. It was alleged that the deceased might have sipped and fallen into the khud of his own. The Insurance Company in its reply took up the plea that the deceased was an unauthorized passenger travelling in the tractor and it was also argued that the vehicle was being driven by its driver who was not holding a valid driving licence. The learned Tribunal held that the death of the deceased had taken place in the accident. It further came to the conclusion that the accident was a result of rash and negligent driving of Raju Ram alias Raj Kumar. Compensation of Rs. 2,50,760/- was awarded in favour of the claimants. 4. In this appeal by the Insurance Company only two questions have been raised. 5. Mr. Ashwani Kumar Sharma learned Counsel for the Insurance Company has urged that the deceased was travelling unauthorisedly on the tractor and as such the Insurance Company was not liable. Secondly, he urged that the driving licence which has been produced on the record was issued on 12.11.1998 whereas the accident had taken place on 9.11.1998. It is quite obvious that the this licence was ante dated to show that it was valid from 2.11.1998. He submits that the Insurance Company could not be held liable to pay the compensation. 6. On the other hand, Mr. Baldev Singh Chaudhary learned Counsel for owner and driver submits that the deceased was not travelling on the tractor. He further submits that the driver was having a valid driving licence and as such the Insurance Company has rightly been held liable to pay the compensation. 6. On the other hand, Mr. Baldev Singh Chaudhary learned Counsel for owner and driver submits that the deceased was not travelling on the tractor. He further submits that the driver was having a valid driving licence and as such the Insurance Company has rightly been held liable to pay the compensation. He further submits that even if it is presumed that the driving licence was issued lateron then also since the date mentioned on the licence is 2.11.1998, the owner be presumed to have verified the same on or about 2.11.1998. 7. As far as the first contention raised by Mr. Ashwani Kumar Sharma is concerned, I find that there is no evidence on record to show that the deceased was travelling on the tractor. In the claim petition it is no where stated that the deceased was travelling on the tractor. PW3 Rampal appeared in the witness box and stated that he found the deceased Dila Ram lying below the tractor. He denied the suggestion that the FIR was lodged at his instance or that Dila Ram was travelling on the tractor. No other evidence was led. As such this issue decided against the Insurance Company. 8. As far as second issue is concerned, RW1 Nawal Kishore, Clerk of the office of Deputy Commissioner, Bilaspur had stated that he is working as Licensing Clerk in the office of Licensing Authority, Bilaspur. As per the record, licence No. BDL-706/98 was issued on 12.11.1998 in favour of Raj Kumar son of Shri Krishanu Ram. According to him, as per the register, this licence was valid up to 12.11.1998 to 11.11.2001. He also produced the original register before the Court. 9. Interestingly, Ex. R2 copy of the driving licence of the driver shows the date of issuance as 2.11.1998 and its validity from 2.11.1998 to 1.11.2001. There is an obvious conflict between the statement of this witness and the dates mentioned in the licence. Therefore, this Court to verify the facts has passed the following orders on 25.8.2005: "In this case on going through the evidence, I find that RW-1 Clerk from the Office of Deputy Commissioner, Bilaspur has appeared and stated that he is Licensing Clerk in the Office of Licensing Authority, Bilaspur. Therefore, this Court to verify the facts has passed the following orders on 25.8.2005: "In this case on going through the evidence, I find that RW-1 Clerk from the Office of Deputy Commissioner, Bilaspur has appeared and stated that he is Licensing Clerk in the Office of Licensing Authority, Bilaspur. He has brought the licensing register and according to him licence No. BDL-706/98 was issued on 12.11.1998 in favour of Raj Kumar son of Krishnu Ram of village Nalwar, District Bilaspur. A photo copy of this licence has been placed on record as Ext. R-2. In this licence the date of issuance has been shown to be 2.11.1998. There obviously is a direct conflict between the photo copy of the licence and the statement made by the witness. Therefore, in the interest of justice, I order that the Registering and Licensing Authority, Bilaspur shall bring with him the original record relating to Licence No. BDL-706/98 stated to be issued in favour of Raj Kumar son of Krishnu Ram of village Nalwar, District Bilaspur. The concerned official shall also produce the application showing the date on which the driving licence was applied for along with all supporting documents^ such as, learners licence, driving licence etc. He shall also bring the record relating to the driving test, if any, held before issuing this licence. The Registering and Licensing Authority shall appear in person along with the entire record on 9th September, 2005. The Registry shall immediate communicate a copy of this order to the Registering and Licensing Authority, Bilaspur with one copy to the District and Sessions Judge, Bilaspur, who shall also convey this order to the Registering and Licensing t Authority, Bilaspur." 10. The Registering and Licensing Authority had appeared in the Court on 9.9.2005 along with the record on which date the following orders were passed :- "In compliance to the orders of this Court dated 25.8.2005, Shri Baldev Thakur, R&LA, Bilaspur along with Shri Parkash Chand, Licensing Clerk are present. They have produced the record. The record reveals that the license of Raj Kumar was issued only on 12.11.1998 and it was valid from 12.11.1998 to 11.11.2001. The R&LA submits that the Licensing Authority who had issued the license has since retired and he is not in a position to explain as to how in the driving licence the date is mentioned as 2.11.1998. The record reveals that the license of Raj Kumar was issued only on 12.11.1998 and it was valid from 12.11.1998 to 11.11.2001. The R&LA submits that the Licensing Authority who had issued the license has since retired and he is not in a position to explain as to how in the driving licence the date is mentioned as 2.11.1998. He also states, that the original application form, as per rules after the audit is done, has been destroyed. The original record has been returned to the R&LA, Bilaspur, who need not be present in future. He further states that as per the register the fees were deposited on 31.8.1998. List the matter after two weeks." 11. From the above, it is clear that the application for issuance of the license was filed on 31.8.1998. However, the licence was not issued at that time. The only dispute is whether the licence was issued on 2.11.1998 or 12.11.1998. PW-2 in his statement has stated that the licence was issued on 12.11.1998. Copy of the application for grant of licence is on record. The same has been exhibited as Ex. R6. On the back of this application form, there is an endorsement that "D/L issued/8 (sic) No. BDL7706/98 dated 12.11.1998," This endorsement has been signed by the Registering and Licensing Authority, Bilaspur. The register also shows that the licence was issued on 12.11.1998. 12. It is obvious that the licence was issued on 12.11.1998 but how the date 2.11.1998 has come on the licence has not been explained. The original record has been destroyed and the person holding the post of Registering and Licensing Authority at the relevant time has since been retired. However, the fact stands proved on record that the driving licence was actually issued on 12.11.1998. The contention of Mr. Baldev Singh Chiaudhary that the owner must have verified the driving licence on of about 2.11.1998, in my opinion, cannot be accepted. Once I have held that he licence was issued on 12.11.1998 when there is no license issued before that date. There was no document which could have been seen or verified prior to 12.11.1998. Before the date of issuance of the document, there was no driving licence in existence. Therefore, the owner could not have verified any driving licence. It appears that after the accident took place, the driving licence was obtained and it was got ante date. There was no document which could have been seen or verified prior to 12.11.1998. Before the date of issuance of the document, there was no driving licence in existence. Therefore, the owner could not have verified any driving licence. It appears that after the accident took place, the driving licence was obtained and it was got ante date. However, no conclusive finding can be given on this issue at this stage. In any event, I am of the opinion that on 9.11.1998, the date of accident, the driver did not hold any driving licence whatsoever. 13. In view of the above discussion, the appeal is allowed and it is held that the Insurance Company could not have been held liable to pay the amount of compensation. The Insurance Company has deposited the amount of compensation and it would be inappropriate to ask the claimants to refund the amount and recover it from the owner. However, the Insurance Company shall be at liberty to recover this amount along with interest from the owner of the vehicle ir question by filing execution proceedings and without taking recourse to separate proceedings. The decision of these appeals shall be treated as a decision inter se the insurer and the insured. 14. The appeal is allowed in the aforesaid terms with no order as to costs.