FAO NO. 3080 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO NO. 3080 of 2010 Date of order: 14.12.2011 New India Assurance Company ..... Appellant Versus Ranjit Singh and others .... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. R.C. Kapoor, Advocate for the appellant. Mr. R.S. Bajaj, Advocate for respondents no. 4 and 5. **** Vijender Singh Malik, J. This is an appeal brought by New India Assurance Company, the insurer of truck bearing registration no.PB32-B/8307 challenging the award dated 13.02.2010 passed by Motor Accidents Claims Tribunal, Jalandhar (for short 'the Tribunal') vide which the plea of the appellant of violation of terms and conditions of the insurance policy by the insured has been rejected and the insurance company is held liable to pay compensation to the claimants jointly and severally with respondents no.1 and 3, the driver and owner of the truck in question. The claim petition for compensation had been brought by Ranjit Singh and others,respondents no.1 to 3 before me, under the provisions of section 166 of Motor Vehicles Act, 1988 ( for short the FAO NO. 3080 of 2010 2 Act) seeking compensation in a sum of Rs.15,00,000/- on the death of Sonia Saini in a road side accident that took place on 11.10.2007. The accident is claimed to have occurred while Sonia Saini was moving on her Honda Activa bearing registration no. PB-08 BB/7110 and was hit by truck bearing registration no. PB/32-B/8037. The respondents resisted the claim of the claimants. What is necessary to mention here is the plea of respondent no.2, the insurer, who has claimed that respondent no.1 was not holding a valid and proper driving licence at the time of the accident and, therefore, the insured has violated the terms and conditions of the insurance policy. On the pleadings of the parties, the following issues were framed by learned Tribunal:- “1- Whether the accident took place due to the rash and negligent driving of respondent no.1 truck No.PB- 32-B/8307 in which Sonia Saini died ?OPA 2- Whether the claimants are entitled to compensation? If so, to what amount and from whom?OPA 3- Whether the respondent no.1 was not holding valid and effective documents at the time of alleged accident?OPA 4- Relief.” Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal allowed the claim petition vide award dated 13.02.2010 awarding a sum of Rs.3,40,000/- as compensation on the death of Sonia Saini. Under issue no.3 learned Tribunal has concluded that the insurance company has failed to prove FAO NO. 3080 of 2010 3 that respondent no.1 was not holding a valid and effective driving licence and, therefore, it was held that respondent no.2 cannot avoid its liability to pay compensation to the claimants being insurer of the offending truck. I have heard Mr. R.C. Kapoor, learned counsel for the appellant, Mr. R.S. Bajaj, learned counsel for the respondents and have gone through the record carefully. Learned counsel for the appellant has taken me through paragraphs no.11 to 13 of the award where learned Tribunal has discussed the evidence coming on the issue of validity of the driving licence of respondent no.1. According to him, the insurer had examined Kuldeep Singh, a clerk from the office of DTO, Hoshiarpur as RW-2, who had stated that the driving licence in the name of Kirpal Singh, respondent no.1 had been renewed by DTO Office Hoshiarpur w.e.f. 25.06.2002 to 24.06.2005 and that the previous licence on the basis of which the renewal was made, was in the name of Kishan Lal s/o Babu Ram, resident of Khanpur and not in the name of Kirpal Singh, respondent no.1. He has submitted that this evidence was sufficient to prove that the original licence on the basis of which the renewal was made in favour of Kirpal Singh was not in the name of respondent no.1 and, therefore, the driving licence with respondent no.1 cannot be held to be a valid licence. Learned counsel for the appellant has further assailed the evidence of Lalit Kumar Gupta, a partner of the firm of M/s Gupta FAO NO. 3080 of 2010 4 Cement Corporation, who has been owner of the truck in question. According to him, he has although claimed that he had got the driving licence of Kirpal Singh verified from Licensing Authority, Hoshiarpur while employing him as driver with his firm, has made a statement in cross-examination which shows that his statement in this regard is not true. According to him, the Tribunal has relied upon the statement of Lalit Kumar Gupta, RW-2 and in view of the law laid down by Hon'ble Supreme Court of India in Lal Chand v. Oriental Insurance Co., 2006 (3) Apex Court Judgments 170 has held that the insured has not committed any violation of the terms and conditions of the insurance policy and, therefore, the insurance company cannot escape its liability to satisfy the award. The statement of Lalit Kumar Gupta, which is said to belie his claim made in examination-in-chief of employing Kirpal Singh after verifying the genuineness of his driving licence from Licensing Authority, Hoshiarpur are that he was not in possession of the written report to this effect. He had claimed that his employee had brought the written report from Hoshiarpur but he could not tell the name of that employee as also the exact date, month and year of bringing such report. He also could not tell the name of signatory of that report. Learned counsel for the appellant has, therefore, submitted that the evidence on the record was sufficient for the insurance company to prove that the driving licence of respondent no.1 was not valid and as the insured failed to prove that he had verified the genuineness of the driving FAO NO. 3080 of 2010 5 licence of Kirpal Singh before employing him, learned Tribunal was wrong in holding that respondent no.3 has not violated the terms and conditions of the insurance policy. Learned counsel for respondent nos. 4 and 5 has submitted on the other hand, that learned Tribunal has been fully justified, for the reasons given by him in reaching the conclusion that the insurance company has failed to prove violation of the terms and conditions of the insurance policy by the insured. He has submitted that the statement made by Kuldeep Singh clerk in his cross-examination clearly shows that he had not brought the original record and in the absence of the same, his statement that the renewal of the driving licence in favour of Kirpal Singh was on the basis of the previous licence in the name of Kishan Lal, could not be believed. He has further submitted that there is nothing in the statement of Lalit Kumar Gupta showing that the same is not reliable. He has submitted that the driving licence which was there with Kirpal Singh at the time of his employment by Lalit Kumar Gupta was a genuine licence issued by Licensing Authority, Hoshiarpur and, therefore, it can be said that the insured had employed Kirpal Singh after verifying the genuineness of his licence and it was this much which the insured could do while taking a driver in his employment and, therefore, in view of the law laid down in Lal Chand's case (supra), the insured cannot be held to have violated the terms and conditions of the insurance policy. FAO NO. 3080 of 2010 6 Statement of Kuldeep Singh, Clerk, DTO Office, Hoshiarpur, RW-2 is the only evidence on record to prove that the driving licence No.0878/R/02-03 in the name of Kirpal Singh authorizing him to drive LMV and HMV only was renewed from 25.6.2002 to 24.6.2005 on the previous licence no.5148/R/99-00 which had been in the name of Kishan Lal s/o Babu Ram r/o Khanpur. It is true that he did not bring the original record. For non-bringing of the same, learned Tribunal has observed that there is some hanky-panky done by the office of DTO, Hoshiapur in order to help the insurance company. This view does not seem to be possible on the evidence on record. Still it can be said that the evidence which was available with the office of DTO Hoshiarpur was not brought before the Tribunal and whatever has been stated at the trial, had been the observation of the witness from that record which he did not bring with him. Kuldeep Singh clerk, RW-2 moreover admitted in his cross- examination that at the time of renewal of licence of Kirpal Singh, the previous licence given by him was verified. If this is a fact, the verification would have been meaningless if the previous licence was in the name of some other person and the person applying for renewal was some other person. So the statement of Kuldeep Singh clerk, RW-3 that at the time of renewal of licence of Kirpal Singh, the previous licence was verified coupled with the fact that the original record was not brought by him would be sufficient to hold that the insurance company has not led sufficient evidence to prove that the driving licence held by FAO NO. 3080 of 2010 7 Kirpal Singh was not genuine. In view of the aforesaid conclusion, the insured would not have to rely upon the law laid down in Lal Chand's case (supra). Still for the sake of discussion, the statement of Lalit Kumar Gupta, RW-2 may be examined. A person who employed Kirpal Singh a few years ago would not be remembering the date of the verification report. Generally the signatures on such reports are not decipherable and by passage of a long time, the insured could not have been left in a position to tell as to who had signed the said report. He would not have been remembering the date, month or year of the bringing of the report and the failure of Lalit Kumar Gupta to re-call these facts would not be sufficient to hold that his statement about verifying the driving licence of Kirpal Singh from Licensing Authority Hoshiarpur is not believable. Therefore, it was all which the insured of the truck could do before taking Kirpal Singh in his employment and the case is covered by ratio of Lal Chand's case (supra) where Hon'ble Apex Court has held that if the owner appoints driver after examining the driving licence of driver and takes a driving test and finds the driver competent to drive, there could be no breach of section 149(2)(a)(ii) of the Act and, thus, the insurance company in that event could not be absolved of its liability. Though a driving test was not taken of Kirpal Singh, yet he had been driving the truck for the last three or four years before the accident in question and as he was driving the same to the satisfaction of the owner, the condition of driving test also stands satisfied. FAO NO. 3080 of 2010 8 In these circumstances, I fail to agree with learned counsel for the appellant in his submissions made before me. Consequently I find no reason to interfere with the finding of learned Tribunal on issue no.3. While upholding the same, I find no merit in the appeal and dismiss the same. (VIJENDER SINGH MALIK) JUDGE 14.12.2011 dinesh