IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 424 of 2005 Reserved on: 29.07.2009 Date of decision: 17.08.2009 United India Insurance Company Ltd. ... Appellant Versus Kailash Chander & Ors. … Respondents Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Ashwani K. Sharma, Advocate. For the respondents: Mr. Lovneesh Kanwar, Advocate, for respondent No. 1. Mr. B.S. Thakur, Advocate, for respondents No. 2 and 3. V.K. Ahuja, J.: This is an appeal filed by the Insurance Company/appellant against the award of the Court of learned Motor Accident Claims Tribunal, Shimla, dated 11.7.2005, vide which, the learned Tribunal allowed the claim petition filed by respondent No. 1 and granted compensation to the extent of Rs. 3,02,390/- alongwith interest. Briefly stated, the facts of the case are that respondent No. 1 as claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988, hereinafter referred to as ‘the Act’ as against respondent 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 No. 2, who was impleaded as owner of the truck, respondent No. 3 was impleaded as driver of the truck and the appellant was impleaded as insurer of the vehicle. It was alleged that on 15.2.1999, the claimant/petitioner was driving scooter No. HP-07-2399 and when he reached near Shoghi, a truck bearing No. HIA-5555 owned by respondent No. 2 and being driven by respondent No. 3, rashly and negligently struck with the scooter and petitioner suffered multiple injuries. He suffered permanent disability and has claimed compensation. The original respondents No. 1 and 2 i.e. owner and driver denied the allegations that the truck was involved in this accident. It was pleaded that the scooterist was lying at the road and the truck driver had only taken him to the hospital on humanitarian ground. Appellant as insurer pleaded that the driver was not holding a valid and effective driving licence and the vehicle was being plied in violation of the insurance policy. On the pleadings of the parties, issues were framed and the learned Tribunal concluded that the accident took place due to rash and negligent driving of respondent No. 2, driver of the truck and that respondent No. 3 i.e. Insurance Company had failed to prove that respondent No. 2 was not possessing a valid and effective driving licence and as such, the petition was allowed as against the appellant only who was made liable to pay the amount. I have heard the learned counsel for the parties and have gone through the record of the case. The first submission made by the learned counsel for the appellant was that there is no evidence on record to show that the driver was possessing a valid and effective driving licence on the date of the accident. The learned Tribunal had not properly discussed the 3 evidence and had come to a wrong conclusion and, therefore, those findings are liable to be reversed. On the other hand, learned counsel for respondent No. 2 had submitted that the onus was upon the Insurance Company to prove that the licence was not valid in which they had failed and as such, the findings of the learned Tribunal are not liable to be set aside. Coming to the pleadings of the parties, it is clear that the Insurance Company as respondent No. 3 has clearly pleaded that the driver was not having a valid and effective driving licence. A perusal of the discussion made by the learned Tribunal under Issue No. 4 in this regard is that RW-2 Anil, Clerk, from office of Registration and Licencing Authority, Solan, has stated that the licence was issued in favour of respondent No. 2 on 27.3.1999. No evidence to the contrary has come on record. Therefore, the learned Tribunal concluded that respondent No. 3 had failed to prove that respondent No. 2 was not holding a valid and effective driving licence. There is no dispute in regard to the proposition that in case the Insurance Company takes a plea that the driving licence was not valid, it is for them to prove that the licence in question was not valid once. However, the Insurance Company can prove this fact in case once the driving licence is produced on record by the driver of the vehicle since the licence can be said to be in his possession only. Once the driver proves the driving licence then the onus lies on the Insurance Company to prove that the licence was not valid one. In case, the licence is not produced during the trial of the case, the Insurance Company is at liberty to apply for directions to be issued to the driver to produce the licence so that they can prove the same as to whether it was valid or not. 4 Coming to the plea of driver/respondent No. 2, the driver stepped into the witness box as RW-1 Jeet Singh. He stated that he was driving the truck in question. But he did not state that he was possessing a valid licence and did not produce the same during examination-in- chief. However, in cross-examination it was suggested to him and he stated that he has brought the driving licence today and Ext. R-1 is the copy of this driving licence. He further stated that Ext.R-2 is my photograph. He further stated that the licence which he has brought today and copy of which is Ext.R-1 was obtained by him from Registration and Licencing Authority, Solan. He admitted that the driving licence which he has brought today was not got renewed by him in time. He denied his knowledge in case driving licence issued by the R.L.A. Solan is not valid for driving truck i.e. heavy motor vehicle. He further admitted that the licence Ext.R-1 has been issued in the name of Jeet Ram but he stated that this error has been committed by the R.L.A. but his name is Jeet Singh. It is, therefore, clear from the above discussion that the driver voluntarily produced in evidence the copy of the driving licence and stated that he was having the original licence and proved the copy as Ext. R-1. In case licence in question which copy Ext.R-1 has been proved on record is taken on the face value as to the contents thereof, it has to be seen as to whether the same can be termed as valid. In case, the contents were incorrect then it could have been said that the burden was upon the Insurance Company to prove that its contents were incorrect or that it was not issued by the authority i.e. Licencing Authority, Solan. RW-2 Anil, Clerk, from the office of Licencing Authority, had stated that he had brought the record of driving licence issued in favour of Jeet Ram and Ext.R-1 is the correct copy of this 5 driving licence. He further stated that this licence was issued for light motor vehicles only. Thereafter, it was endorsed for a light transport vehicles on 2.6.2000. He further stated that this licence was issued from this office on 27.3.1999. A perusal of the copy of the licence Ext.R-1 admitted as correct by the driver himself shows that this licence was issued on 27.3.1999 for light motor vehicles only. The statement of the Clerk from the Registering Authority RW-2 discussed above also proved the date of issuance of the licence as 27.3.1999. The Insurance Company has to get the licence verified as has been produced by the driver and the driver has admitted that Ext.R-1 is the correct copy of this driving licence. The learned Tribunal in discussing the evidence in this regard did mention that the licence was issued as per RW-2 on 27.3.1999. Thereafter, the learned Tribunal proceeded in a casual manner and did not consider the date of the accident since that was very material to consider if the driver was having a valid licence on the date of accident or not. The date of accident is 15.2.1999 and in case the learned Tribunal had just observed this fact as to what was the date of accident, it could not have been concluded that respondent No. 3 had failed to prove that respondent No. 2 was not holding valid and effective driving licence. The evidence of the driver himself as RW-2, clearly proves that the licence was issued after the date of accident i.e. on 27.3.1999 and there is no evidence on record to show that the driver was possessing a valid licence on 15.2.1999. In case, the licence is accepted on its face value, even if it was valid on the date of accident, it was valid for light vehicles only and not for truck in question. There is no proof on record that this licence was valid as produced by the 6 driver. No more evidence was led by the Insurance Company to show that the licence was not valid on the date of accident since the evidence led clearly proves that it was issued after the date of the accident. From the above discussion, it is clear that the learned Tribunal proceeded in a very casual manner in giving its findings on Issue No. 4 in this regard and it has to be held on the basis of evidence led in the case that the driver i.e. respondent No. 2 was not having a valid and effective driving licence on the date of the accident and, therefore, there was violation of the terms of the policy. The Insurance Company is, therefore, not liable to pay any compensation. The compensation was deposited by the Insurance company, they are entitled to recover the same from the owner by filing execution petition and not necessarily by filing a separate suit. Coming to the second plea raised by the learned counsel for the appellant that the compensation awarded was excessive, the Insurance Company is not entitled to challenge the same since they had not taken any permission from the Court by filing an application under Section 170 of the Motor Vehicles Act to file the petition on all the grounds. According to the provisions of Section 149 of the Act, the appellant/Insurance Company is not entitled to challenge the amount of compensation or challenge the award on any ground except as provided therein. Therefore, on quantum, the appellant is not entitled to challenge the findings and no specific challenge was laid on the quantum also except general in nature. However, the only plea raised by the learned counsel for the appellant was there that since the petitioner was to get the amount to which he has been held entitled for the leave taken by him, it was to be payable only on his retirement as encashment for the earned leave. He was, therefore, not entitled to 7 interest on this amount. The petitioner had to take leave during the period and once that amount has been quantified, he is entitled to the interest also and accordingly, the findings of the learned Tribunal holding that the petitioner was entitled to interest at the rate of 9% from the date of petition till payment do not call for an interference by this Court. In view of the above discussion, the appeal filed by the appellant is allowed to this extent that they shall be entitled to recover the amount from the owner of the vehicle, namely, respondent No. 2 after deposit of the amount. The appeal is allowed accordingly with no order as to costs. ( V.K. Ahuja ), August 17, 2009 Judge (BSS)