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Himachal Pradesh High Court · body

2010 DIGILAW 1160 (HP)

Rajinder Singh v. Rajinder Kumar

2010-10-01

SURJIT SINGH

body2010
JUDGEMENT Surjit Singh, Judge (Oral) This appeal, by the insured (owner of the vehicle), is directed against the award dated 20.9.2005, of Motor Accident Claims Tribunal, whereby insurer, impleaded as respondent No. 4 herein, has been absolved of its liability, to indemnify the appellant-insured. 2. A petition under Section 166 of the Motor Vehicles Act, 1988 was filed by respondents 1 to 3 (hereinafter referred to as claimants), seeking award of compensation, for the death of a six year old child. It was alleged that the deceased was present by the side of road, when it was hit by bus No. HP-67-0364. The bus, at the relevant time, was being driven by respondent No. 3 Tarsem Lal. Cause of accident was alleged to be rash or negligent driving of the bus. Insurance Company, impleaded as respondent No. 4 herein, denied its liability, on the plea that the driver of the bus, namely Tarsem Lal, did not possess a valid and effective driving licence and, thus, there was a breach of condition of the Policy, on account of which, it was not liable to indemnify the insured. Owner and the driver of the bus denied that cause of accident was rash or negligent driving of the vehicle. 3. An application was moved by the Insurance Company under Section 134 (C) of the Motor Vehicles Act, seeking a direction to the owner and the driver of the vehicle, to supply particulars of the Licence. Order dated 1.2.2005, passed by the Tribunal, indicates that particulars of the licence were supplied. 4. Issues were framed. Parties went to trial. Learned Tribunal held that cause of accident was rash or negligent driving of the motor vehicle, by respondent No. 3, Tarsem Lal. A sum of ‘1,50,000/- was assessed as quantum of compensation. It was held that as there was no proof that respondent Tarsem Lal had a valid and effective licence, Insurance Company could not be fastened with the liability. 5. I have heard the learned counsel for the parties and gone through the record. 6. A sum of ‘1,50,000/- was assessed as quantum of compensation. It was held that as there was no proof that respondent Tarsem Lal had a valid and effective licence, Insurance Company could not be fastened with the liability. 5. I have heard the learned counsel for the parties and gone through the record. 6. Onus of proof of issue that Tarsem Lal, driver, did not possess a valid and effective licence, was upon the Insurance Company and, therefore, learned Tribunal was not right in absolving the Insurance Company of its liability, with the finding that driving licence, having not been produced and there being no proof that the driver was possessed of a valid and effective licence, Insurance Company was not liable. 7. As a matter of fact, evidence on record proves that there was driving licence in the name of respondent Tarsem Lal, and the original licence had been seized by the police, while investigating criminal case regarding accident, in question. A clerk from the Court of C.J.M., Una, Sh. Onkar Nath, was summoned with the record. He appeared as RW-1 and testified that original licence, was available in the case, titled State Versus Tarsem Lal. 8. Insurance Company made no attempt to procure a copy of that licence, or even the particulars of that licence and to get the same verified. It wrote one letter, Ex. RW-2/A, to the Licensing Authority, Una, mentioning therein, a licence number and its renewal number. That application was returned with endorsement Ex.RW-2/A. In the endorsement, it was stated that no licence, with the particulars mentioned in the application, had been renewed, in favour of respondent Tarsem Lal. A witness from Registering and Licensing Authority Office, Una, namely Shri Gurbachan Singh, RW-2, was also examined, who testified that particulars, mentioned in the aforesaid application, pertained to the licence of one Bakhtawar Singh. 9. Appellant insured, while in the witness box as RW-3, stated that when he employed Tarsem Lal, the latter had shown a licence to him, which had been issued by Licensing Authority, Nasik and renewed by Licensing Authority, Una. In the course of cross examination, insurer showed him a photo stat copy of licence Mark ’A’. He stated that he did not know if Mark ‘A’ was the copy of license, that had been shown to him by Tarsem Lal, at the time of his employment. In the course of cross examination, insurer showed him a photo stat copy of licence Mark ’A’. He stated that he did not know if Mark ‘A’ was the copy of license, that had been shown to him by Tarsem Lal, at the time of his employment. It has not been explained by the insurer, where did it get this photo stat copy Mark ‘A’ from. There is nothing on record to show that Mark ’A’ was produced and relied upon by the appellant-insured. 10. In any case, as already noticed, Insurance Company had the opportunity to prove, whether the licence which was available on the police file, produced by an official, from the Court of C.J.M., was genuine or not. It could have procured a legible photo stat copy of that licence and got the same verified from the concerned authorities. Mark ‘A’ is an illegible copy. The name of the licence holder is not visible. Other particulars are also not very clear. 11. In view of the above stated position, it is held that Insurance Company, having failed to prove that driver did not possess a valid and effective driving licence, cannot escape liability from indemnifying the insured. Consequently, appeal is allowed and it is ordered that besides the present appellant and the driver of the vehicle, Insurance Company, i.e. United India Assurance Co., impleaded as respondent herein, is also liable to satisfy the award. 11. Ten weeks time is granted to the Insurance Company to deposit the compensation money, together with interest up to date, with the Registry of this Court.