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2016 DIGILAW 185 (UTT)

Dara Singh v. Surat Singh

2016-05-02

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. 1. For the reasons stated in the enclosed affidavit, delay in filing the appeals is hereby condoned. Delay condonation applications (CLMA 13651/2014, CLMA 13647/2014 and CLMA 14554/2014) are accordingly allowed. 2. All these three AOs have arisen out of the same accident, wherein on petition, instituted by the claimants (difference ones), the judgment was rendered by concerned Tribunal granting compensation to the petitioners as per their merits but liability was fastened upon the appellant Shri Dara Singh (driver/owner of the offending vehicle). 3. Since, the vehicle was insured at the relevant date and time, hence, Insurance Company was directed to pay the compensation with a liberty to recover the same from the appellant Shri Dara Singh. 4. Feeling aggrieved, appellant Shri Dara Singh has come up before this Court in the said titled appeals. It is not disputed that the offending vehicle was insured, having a valid permit as well as the fitness conditions. The only controversy is shifting the liability from owner-cum-driver to the Insurance Company. While accident occurred on 28th February, 2012, appellant was, though, having a valid driving license w.e.f. 30.10.2009 to 02.10.2012 but such license was not having endorsement of Authority concerned authorizing him to drive the vehicle on the hill road. 5. This way, appellant has violated the terms of insurance policy. Vehicle shall be driven by a person having a valid driving license as envisaged under Section 3 of the Motor Vehicles Act supported by Rule 193 framed under such Act. 6. It has been argued by learned Counsel of the Insurance Company that the vehicle fell down from the road situated at the height of 700 meters skidded into the deep gorge, so vehicle owner must have the endorsement of Authority concerned authorizing him to drive such vehicle on the hill road as contemplated under said Provision of Act and Rules. 7. 7. On the other hand, learned counsel of the appellant has submitted that the accident occurred in Kalsi Block Development Area situated in District Dehradun and Uttarakhand Motor Vehicles Rules, 2011 in Rule 2(j), the “Hill Road” has been defined, which adumbrates as under:- “Hill Raod” means all roads within Pithoragarh, Champawat, Almorah, Bageshwar, Rudraprayag, Chamoli, Uttarkashi and Tehri-Garhwal districts, tahsil Chakrata of Dehradun district and those portions of Nainital and Garhwal district which lie on the north of the base of foothills directly from Tanakpur in the east via Kathgodam, Ramnagar in the west and all roads beyond municipal limits of Dehradun city towards Mussoorie. 8. In this provision, it has no where been clarified whether the road leading to Kalsi is a hill road or based in the foothills comparable with the plain roads, so the fact remains that the vehicle fell down from the height of 700 meters, as has been depicted in the second paragraph of the impugned judgment, which would be based on the averments of the parties, therefore, the inference can be drawn that at the relevant date and time, the vehicle was being driven on the hill roads. Now, the question remains that what will be effect of not having made the endorsement of “hill driver” on the license. 9. Learned counsel on behalf of the appellant has relied upon the precedent of co-ordinate Bench of this Court Balbir Singh Vs. Shobha Kashyap and Another, 2008 (1) U.D. 65 , wherein, the scope of Section 3 of the Act and the Rule 193, as indicated above, have been discussed. 10. Learned co-ordinate Bench of this Court while relying upon the Hon’ble Apex Court’s judgment, rendered in United Insurance Company Limited Vs. Lahru, 2003 AIR SCW 1695 as well as in other precedent of “National Insurance Company Limited Vs. Swarn Singh, Accident Claims Tribunal, Vol-1, Page-1.” has held that in view of observations made by the Hon’ble Apext Court in the said judgments, there would be no breach of Section 149(2)(a)(ii) on account of non-endorsement of hill driving license and the Insurance Company cannot be absolved from his liability. 11. Even otherwise, this appellant/driver got the hill endorsement on his license on 10.04.2012 from the Competent Authority, so securing that endorsement on the driving license was sheer a formality in the instant case, which he got done just almost after a month. 11. Even otherwise, this appellant/driver got the hill endorsement on his license on 10.04.2012 from the Competent Authority, so securing that endorsement on the driving license was sheer a formality in the instant case, which he got done just almost after a month. Had he not any expertise to drive this utility small vehicle on the hill roads, then he could not have got such endorsement almost within a month from the competent Officer. 12. This way, I find force in these appeals and the same are hereby allowed accordingly. Impugned judgment, rendered by the Tribunal, is modified to the extent of fastening the liability. Now, such liability shall remain fastened upon the Insurance Company. 13. It has been brought to the notice of this Court that the compensation has been received by all the claimants as paid by the Insurance Company in compliance of the award.