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2018 DIGILAW 27 (GAU)

Juga Kumar Baruah v. Sumitra Roy

2018-01-05

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. J. Deka learned counsel for the appellant as well as Ms. S. Roy learned counsel for the respondent. 2. This appeal under section 173 of the Motor Vehicles Act, is directed against the judgment and order dated 30.05.2011 passed by the learned Member, MACT, Guwahati in MAC Case No. 1/2008. 3. The appellant is the owner and driver of Maruti Alto vehicle bearing registration No. AS-01/Y-8167. The brief facts of the case are that on 02.09.2007, the offending vehicle was proceeding from Maligaon Chariali towards Gosala. It was alleged that the car being driven in a rash and negligent manner, hit a pedestrian, namely, Late Babul Roy near NF Railway Hospital. The victim suffered grievous injuries and died on 06.09.2007. The respondent No. 4 i.e. insurer as well as the appellant, who were arrayed as opposite party Nos. 1 and 2 respectively in the claim petition, contested the claim by filing their written statement. 4. While the respondent No. 4 herein took the usual plea of putting the onus of the claimant to prove the claim, the appellant herein had taken a plea that the offending vehicle was duly insured by the respondent No. 4 and was being driven with a valid licence at the time of the accident. 5. The following issues were framed for adjudication:- 1. Whether victim, Babul Roy, died as a result of the injuries sustained by him in the alleged road accident dated 02.09.07 involving vehicle No. As-01/Y-8167 (Maruti Alto) and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle? 2. Whether the claimant is entitled to get any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 6. The respondent Nos. 1, 2 and 3 herein who are the claimants had examined the claimant No. 2/respondent No. 2 as the sole witness while the appellant as well as the respondent No. 4 examined one witness each. In respect of issue No. 1 it was held that the appellant herein was driving the offending vehicle in a rash and negligent manner and that the offending vehicle was insured with the respondent No. 4. So accordingly, the issue No. 1 was decided in favor of the claimant. 7. In respect of issue No. 1 it was held that the appellant herein was driving the offending vehicle in a rash and negligent manner and that the offending vehicle was insured with the respondent No. 4. So accordingly, the issue No. 1 was decided in favor of the claimant. 7. In respect of issue No. 2 it has been held that the income of the deceased was Rs. 4000/- per month, the age of the mother was taken as 54 years old and multiplier of 9 was adopted, half of the income was deducted towards on personal expenses and the loss of dependency was calculated at Rs. 24,000/- per year. The compensation was computed as follows:- Loss of dependency 24000 x 9 = Rs.2,16,000/- Funeral expenses = Rs.5000/- Total = Rs.2,21,000/- 8. It was held that at the time of accident the appellant did not have a valid driving licence and therefore, it was held that the insurer could not be made liable to pay any compensation. Accordingly, the issue was decided in favor of the claimant. However, the liability to make payment of the compensation of Rs. 2,21,000/- with 6% interest from the date of filing the claim petition till payment was levied on the appellant. 9. The learned counsel for the appellant submits that there was no eye witness on the accident and therefore, the rash and negligent driving was not proved. It is further submitted that the onus of proving the driving licence was on the respondent No. 4 and not on the appellant and that the learned Tribunal had made erroneous appreciation of the driving licence (Exbt. B) and incorrectly concluded that the appellant did not have the driving licence at the time of the accident. 10. Referring to the cross-examination of DW-2, namely, Debojit Borkakoti, Insurance Investigator, who deposed on behalf of the respondent No. 1 herein, it is submitted that he had stated in his cross-examination that he had visited the DTO on 18.01.2010 to verify the driving licence and found that the original register of driving licence was in a damaged condition and that the DTO had made a supplementary record of the same. He had further stated that the driving licence dated 14.03.2004 was for a period of 3 years and the driving licence No. 8095/NB/04 was recorded in his register on 06.09.2007 as the original driving licence register was damaged. He had further stated that the driving licence dated 14.03.2004 was for a period of 3 years and the driving licence No. 8095/NB/04 was recorded in his register on 06.09.2007 as the original driving licence register was damaged. He had admitted that even if the driving licence was renewed and entered into an original register of driving licence prior to 06.09.2007, he had no information. He had further admitted in his cross-examination that there was no mention in Exbt. G that the driving licence was invalid on the date of accident. 11. It is further submitted that the concerned District Transport Officer (DTO) was not examined and a relevant register was also not exhibited. Referring to Exbt. G, it is stated that originally the said letter containing endorsement of the D.T.O., Nalbari was marked as Exbt. B. But, as the appellant had marked his exhibits as Exbts. A to E, subsequently, the evidence-on-affidavit by DW-1 was corrected by re-marking the said document at Exbt. G. However, due to inadvertence, the document remained to be marked as Exbt. B at Pg-35 of the LCR, which should be read as Exbt. G. 12. It is submitted that the signature of the DTO was marked as Exbt. G(1) but the same is not on the official stationery, but it was signed on the letter head of the DW-2 and moreover, the signatory/author was not summoned and therefore, as the author of the document was not examined, the contents of Exbt. G could not be accepted as a proof of fact that the appellant was not holding a valid driving licence at the time of the accident. Nonetheless, the learned counsel for the appellant has relied on the endorsement made by the DTO at Sl. No. 6, wherein it is reflected that the original driving licence was damaged and was valid upto 13.03.2007 with effect from 06.09.2007. Referring to the same it was submitted that any document which valid upto 13.03.2007, could not be valid with effect from 06.09.2007, because the validity must start from the date prior to the last period of the document. It is further submitted that date in Sl. No. 6 in Exbt. G is visible as 06/09..., and that there is overwriting in figure of date/month 06/09 and that the year is not legible/visible. It is further submitted that date in Sl. No. 6 in Exbt. G is visible as 06/09..., and that there is overwriting in figure of date/month 06/09 and that the year is not legible/visible. It is further submitted that in the written statement filed by the respondent No. 4, they had taken a different stand that there was no accident at all, but by filing the additional written statement they had taken a different stand to the effect that the appellant did not have a valid driving licence. It is also submitted that as per the condition of Exbt. G, the driving licence was having the date of issue on 14.03.2004 and it was valid till 05.09.2010 and as the accident occurred on 02.09.2007 the driving licence of the appellant was duly valid. 13. Relying on the entries made in Exbt. -1 i.e. the accident information report, it is submitted that the claimant was provided information by the police that the driving licence of the appellant was valid upto 05.09.2010. 14. It is submitted that as per the Exbt. -I, which was a seizure list dated 03.09.2007 pertaining to GR Case No. 5753/07, certified copy of which was procured from the Court of SDJM (II), Guwahati, it is entered therein that the driving licence of the appellant was seized on 03.09.2007 and it was mentioned in the seizure list that the said driving licence was renewed upto 05.09.2010. Therefore, it was submitted that it was impossible that the appellant could renew his seized driving licence on 06.09.2007 as projected because the driving licence had validity upto 05.09.2010. Hence, the appellant had a valid driving licence on 03.09.2007 i.e. the date of the accident. 15. In support of his submission, the learned counsel for the appellant has relied on the following citations:- 1. Narcinva V. Kamat & Anr. v. Alfredo Antonio Doe Martins & Ors., 1985 (2) SCC 574 2. Narbada Devi Gupta v. Birendra Kumar Jaiswal and another, 2003 (8) SCC 745 3. Dipak Bhowmik v. Takhelmayum Kr. Singh and ors, 2002 (1) GLT 352 16. Narcinva V. Kamat & Anr. v. Alfredo Antonio Doe Martins & Ors., 1985 (2) SCC 574 2. Narbada Devi Gupta v. Birendra Kumar Jaiswal and another, 2003 (8) SCC 745 3. Dipak Bhowmik v. Takhelmayum Kr. Singh and ors, 2002 (1) GLT 352 16. Per contra, the learned counsel for the respondent No. 4 has submitted that they had examined their investigator as DW-2 who had submitted his opinion that the driving licence was renewed on 06.09.2007, which is after the accident and, as such, on the date of accident, i.e. on 02.09.2007, the appellant had no valid driving licence. 17. It was submitted that as the DW-2 had personally visited the office of the DTO, Nalbari and had carried out the investigation and had submitted his report in his own letter head, merely because the District Transport Officer was not examined, without any proof to the contrary, the entries made in Exbt. 9 by the DTO cannot be dislodged by alleging that the signature of DTO was not proved by the writer himself. It is submitted that it is only after the investigation was done that the respondent No. 4 had submitted their additional written statement and had taken a stand that the appellant had no valid driving licence at the time of the accident. 18. It is submitted that as the case projected by the respondent No. 4 was that the appellant had no valid driving licence on the date of the accident, it was the onus of the appellant to prove that he was having a valid driving licence on the date of the accident. 19. This Court has considered the rival submissions made by the learned counsel for the appellant as well as the respondent No. 4. As per the contents of Exbt. -F, the DW-2 had given his opinion to the respondent No. 4, and that in para 1 of the said letter dated 27.01.2010, it is stated that the driving licence was valid upto 05.09.2010. On the basis of the endorsement made by the DTO in para 4 of the said letter, the DW-2 has given his opinion that the driving licence was renewed on 06.09.2007 after the accident. As per the contents of Exbt. On the basis of the endorsement made by the DTO in para 4 of the said letter, the DW-2 has given his opinion that the driving licence was renewed on 06.09.2007 after the accident. As per the contents of Exbt. G, which is stated to be written by the District Transport Officer, Nalbari, it is mentioned that the date of issuance of licence was 14.03.2004, and as per column 4 thereof, it is seen that the said driving licence was valid upto 05.09.2010. The relevant para 26 which is the cause of some confusion reads as follows:- "This original driving licence No. 821/NB/04 (damage) (valid upto 13.03.2007) w.e.f. 06/09/.... (i legible)." 20. The learned Tribunal as well as the DW-2 examined by respondent No. 4 had interpreted that the driving licence was renewed on 06.09.2007 i.e. after the date of accident. However, this Court is not inclined to accept the same because in the impugned judgment the above referred illegible date was mentioned as 06.09.2007. It is not believed that, a document which is valid upto 13.03.2007 could not be with effect from a later date of 06.09.2007. Moreover, when the original Exbt.-G is illegible with regard to the year, without examining the DTO, Nalbari and/or its original/reconstructed Driving Licence Register, it was neither open to the learned Tribunal nor to this Court to interpret that the illegible year appearing in the said Exbt. G can be read as 2007. Hence, this Court cannot concur with the date of 06.09.2007, as recorded by the learned Tribunal in respect of entry at Sl. No. 6 of Exbt. G. 21. What appears to be relevant is that entries made in the driving licence which is marked as Exbt. B. In the back page of the said licence, the relevant endorsement read as follows: Date of issue- 14/03/04; "licence No. 821/NB/04, Re, recorded, DTO, Nalbari" (sic.) and Date and class of vehicle for endorsement RI, WITH, DL, WEF-6-9-2007; and in the first page of the licence, the date of validity is given as 05.09.2010. 22. As per the entries in Exbt. F, i.e. the letter by the DW-2 to the insurer, it is stated that due to damage of the register of driving licence No. 821 NB/04, it is re-recorded vide DL No. 8095/NB/07/Misc. The case of the respondent No. 4 is that the licence of the appellant was not valid. 22. As per the entries in Exbt. F, i.e. the letter by the DW-2 to the insurer, it is stated that due to damage of the register of driving licence No. 821 NB/04, it is re-recorded vide DL No. 8095/NB/07/Misc. The case of the respondent No. 4 is that the licence of the appellant was not valid. Therefore, as the DW-2 is not the authority to give an opinion on the date of renewal of driving licence. It was incumbent on them to call for the damaged as well as reconstructed register of driving licence from the DTO to prove the effective date of the renewal of the driving licence of the appellant because ex-facie the driving licence is shown to be valid upto 05.09.2010 as per the Accident report (Exbt.-1) and seizure list (Exbt.-I). Moreover, as per the entries made in Exbt. I i.e. Seizure list, the driving licence having validity upto 05.09.2010 is shown to have been seized by the appellant on 03.09.2007. Therefore, it is impossible that from the custody of the police the driving licence will be permitted to be taken out, renewed and re-planted in the police station with same validity period upto 05.09.2010. 23. It is nobody's case that the police records were manipulated and moreover, the said seizure list is shown to have been produced before the learned SDJM-II, Guwahati in connection with GR Case No. 5753/07. Therefore, as the concerned DTO was not examined, this Court is of the view that it was incumbent on the part of the learned Tribunal to give his finding that (1) the entries made in the seizure list (Exbt. I), and (2) Accident information report (Exbt. 1), as well as (3) the endorsement made by the DTO in Exbt. G that the licence was valid upto 05.09.2010 were incorrect entries and only then it could venture to give a finding that the driving licence was renewed after the date of the accident by discussing the available evidence on record. 24. The appellant had produced the seizure list (Exbt. I) showing that his driving licence was seized on 03.09.2007. Under the circumstances, the appellant could not be blamed for not producing the original driving licence, which was in police custody in connection with GR Case No. 5753/07. Moreover, this Court in the case of Dipak Bhowmik v. Takhelmayum Kr. 24. The appellant had produced the seizure list (Exbt. I) showing that his driving licence was seized on 03.09.2007. Under the circumstances, the appellant could not be blamed for not producing the original driving licence, which was in police custody in connection with GR Case No. 5753/07. Moreover, this Court in the case of Dipak Bhowmik v. Takhelmayum Kr. Singh and ors, 2002 (1) GLT 352, by relying on the case of Narcinva V. Kamat and anr. v. Alfredo Anotonio Doe Martins and ors, (1985) 2 SCC 574 , has held that mere non-producing of the licence by the driver does not exonerate the Insurance Company from its liability to indemnify the insured in respect of the award. 25. In this case the appellant had produced a copy of the certificate issued by the DTO, Nalbari dated 03.07.2009 (Exbt. C) which certifies that the said driving licence was issued on 14.03.2004 and was valid upto 05.09.2010. The said certificate was given under Sl. No. DTMB/DM/09/580 dated 03.07.2009, the light of the entries made in Exbt. C as well as Exbt. G, there is no scope for arriving at a finding that the driving licence was renewed on 06.07.2009 for a simple reason that as per the provision of section 14(2)(a) of the Motor Vehicles Act, licence to drive a transport vehicle would be effective for a period of 3 years. Therefore, assuming interpretation by the respondent No. 4 was correct that the driving licence was renewed with effect from 06.07.2009, validity of the licence could not have been for a period of 1 year 2 month upto 05.09.2010 because as per the evidence-on-affidavit filed by the appellant, he was aged about 24 years. Therefore, there was no reason to deny the licence to be renewed for a period of 3 years as per the section 14(2)(a) of the Motor Vehicles Act. 26. Therefore, inevitable conclusion of this Court is that the learned Tribunal had erred on facts as well as on law to assume that the licence was renewed on 06.09.2007, which is not borne by the records. The fact that the entries in the driving licence are shown to be rerecorded as per the contents of Exbt. F as well as Exbt. B, the same could not have been disbelieved by the learned Tribunal. 27. The fact that the entries in the driving licence are shown to be rerecorded as per the contents of Exbt. F as well as Exbt. B, the same could not have been disbelieved by the learned Tribunal. 27. In para 3 of the evidence-on-affidavit of DW-2, it is specifically stated that the concerned driving licence was re-recorded on 06.09.2007 and shown to be valid upto 05.09.2010. It is specifically admitted by the DW-2 that "...even if the driving licence was renewed and entered in original D/L register prior to 06.09.07, he had no information". This is contrary to the statement made in para 4 of the evidence-on-affidavit. The contents of para 3 of the evidence-on-affidavit runs contrary to the statements made in para 4 of the said evidence on affidavit, because in para 3, it is stated that "thereafter the D/L No. 821/NB/04 was re-recorded vide No. 8095/NB/07/Misc. on 06/09/07 and it was shown as valid upto 05/09/2010." 28. Therefore, it is held that the statement made in para 4 of the evidence-on-affidavit by DW-2 is wholly reliable, which is contrary to the evidence on record as per the contents of his own letter dated 27.01.2010 (Exbt. F) and the entries made in the copy of driving licence (Exbt. B) and DTO certificate (Exbt. C). 29. Therefore, it is found that in respect of issue No. 2, the learned Tribunal had erred in his conclusion that the appellant did not have a valid driving licence on the date of the accident. In view of the discussion made above, this Court finds that the appellant had a valid driving licence on the date of the accident, which was renewed upto 05.09.2010, covering the date of accident i.e. 02.09.2007. 30. Consequently, this Court is inclined to hold that the respondent No. 4 who is the insurer of the offending vehicle is required to indemnify the appellant in respect of award and interest vide judgment and award dated 30.05.2011, in connection with MAC Case No. 1/2008. 31. Accordingly, the respondent No. 4 herein i.e. National Insurance Company Limited is directed to deposit the awarded sum along with interest thereon before the jurisdictional learned Tribunal i.e. MACT No. 1, Guwahati within a period of 2(two) months, failing which the amount would carry interest @ 9% from today. 32. 31. Accordingly, the respondent No. 4 herein i.e. National Insurance Company Limited is directed to deposit the awarded sum along with interest thereon before the jurisdictional learned Tribunal i.e. MACT No. 1, Guwahati within a period of 2(two) months, failing which the amount would carry interest @ 9% from today. 32. Let a copy of this order be sent to the respondent No. 1, 2 and 3 who had remained absent in this proceeding. 33. The appeal stands allowed. 34. Let the LCR be sent back. 35. The appellant is entitled to refund of statutory deposit on satisfying the award.