FAO No. 1480 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1480 of 2010 (O&M) Date of decision: 22.03.2010 The Oriental Insurance Company Limited, Jhajjar ....Appellant Versus Somwati and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. Raj Kumar Bashamboo, Advocate, for the appellant. VINOD K. SHARMA, J.(ORAL) CM No. 7243-CII of 2010 For the reasons stated in the application, CM is allowed and the delay of 53 days in refiling the appeal is condoned. CM No. 7246-CII of 2010 This application, under Order 41 Rule 27 of the Code of Civil Procedure, has been moved for leading additional evidence by placing on record the copy of registration certificate of vehicle No. HR-58-6440. It has been averred in the application, that the registration certificate of the vehicle No. HR-58-6440 could not be produced, to show that the vehicle in question was transport vehicle, and further that there was no endorsement in this regard in the driving licence. The applicant seeks permission to lead additional evidence, on the plea, that no irreparable loss is likely to be caused to the respondent/claimants, as the document is public document, which are not required to be formally proved. It is well settled law, that the provisions of Order 41 Rule 27 of the Code of Civil Procedure cannot be invoked to fill in lacuna. No ground whatsoever, as envisaged under Order 41 Rule 27 of the Code FAO No. 1480 of 2010 (O&M) -2- of Civil Procedure, is pleaded or proved in the application. No ground is made out to allow the additional evidence. The application for additional evidence is dismissed. FAO No. 1480 of 2010 This judgment shall dispose of FAO No. 1480 of 2010 titled The Oriental Insurance Company Limited, Jhajjar Vs. Somwati and others and FAO No. 1488 of 2010 titled The Oriental Insurance Company Limited, Jhajjar Vs. Shakuntala Devi and others, as these arise out of the same award. For brevity sake, facts are being taken from FAO No. 1480 of 2010. This appeal, by the Insurance Company, is directed against the award dated 7.10.2009, passed by the learned Motor Accident Claims Tribunal, Kurukshetra, allowing claim petition filed under Section 166 of the Motor Vehicles Act, 1988. The claimants sought compensation on account of injuries suffered by Somwati, and also on account of death of Amar Singh, in a motor vehicular accident. Both the claim petitions were consolidated and disposed of by the same award. The claim petitions were contested by the Insurance Company, on the plea that the driver of the offending vehicle was not having a valid driving licence, at the time of alleged accident. Other grounds of breach of terms of the insurance policy were also taken. On the pleadings of the appellant, the learned Tribunal framed issues No.4 and 5, which read as under: - “4. Whether the respondent-driver of the aforesaid three wheeler was not having valid driving licence at the time of alleged accident? OPR-3. 5. Whether the insurance company is not liable on FAO No. 1480 of 2010 (O&M) -3- the grounds taken in the preliminary objections and additional pleas? OPR-3.” The learned Tribunal, on appreciation of evidence, decided issues No.4 and 5 against the appellant, by recording as under: - “The copy of insurance cover note is Mark-R2. As per the same, the offending three wheeler was insured with respondent No.3 insurance company on the date of accident. The learned counsel for respondent No.3 insurance company contended that respondent No.1 was holding driving licence, copy Mark R-1, pertaining to LMV (light motor vehicles), whereas, he was driving a three wheeler, which was transport vehicle. He thus, contended that there was a violation of the terms and conditions of the insurance policy and respondent No.3 insurance company is not liable. The learned counsel placed reliance on a decision of the Hon'ble Supreme Court rendered in New Indian Assurance Co. Ltd. Versus Roshanben Rahemansha Fakir and another, reported as 2008(3) Recent Civil Reports Page 267, wherein, it was held that where the driver was holding a licence of three wheeler but was driving autorikshaw delivery van which was a goods carrying public carrier within the meaning of rule 51 of the Central Motor Vehicles Rules, the driver was not holding a valid licence. He further placed reliance on another decision of the Hon'ble Supreme Court rendered in New India Assurance Co. Ltd. Versus Prabhu Lal reported as 2008(1) Recent Civil Reports page 198, wherein it was held that where a person was holding driving licence to ply light motor vehicle, he cannot ply transport vehicle. However, after considering the contention, I do not find any merit in the same. There is no registration certificate of the three wheeler produced by respondent No.3 and, therefore, it cannot be presumed that the three wheeler, in question was a transport vehicle. Moreover, in order to avoid the liability, it is so far well settled that the insurance company has to prove FAO No. 1480 of 2010 (O&M) -4- fundamental breach of the terms and conditions of the insurance policy concerning the driving licence which it has failed to do. Therefore, it is held that respondent No.3 insurance company would be liable to pay the compensation and indemnify the insured. There is no dispute with regard to the propositions of law laid down in the authorities relied upon by the learned counsel for respondent No.3 but the same have no application to the facts of the present case. Therefore, this issue is decided against respondent No.3 insurance company.” The learned counsel for the appellant has challenged the impugned award on the plea that the registration certificate of the vehicle No. HR-58-6440, would show that it was a goods vehicle, whereas the driver of the offending vehicle did not have a valid driving licence to drive the goods vehicle, as there was no such endorsement. However, this plea is not available to appellant as, the application moved by the appellant for leading additional evidence stands declined by this Court by order of even date. Consequently, in absence of any evidence to support the contentions raised by the learned counsel for the appellant, it is to be held that the learned Tribunal was right in holding, that the Insurance Company could not escape its liability to pay the compensation to the claimants. Finding no merit in the appeal, it is ordered to be dismissed in limine. (Vinod K. Sharma) Judge March 22, 2010 R.S.