F.A.O.No.1707 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.1707 of 2009 (O&M) Date of Decision 01.12.2009 The Oriental Insurance Company Limited ...... Appellant VERSUS Smt.Janjali Malik and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.D.P.Gupta, Advocate, for the appellant. Service of respondents No.3 and 4 is dispensed with vide order dated 07.09.2009 ***** A.N.JINDAL, J: This appeal, preferred by the appellant-Insurance Company (herein referred as 'the appellant') is directed against the award dated 15.01.2009, passed by Motor Accident Claims Tribunal, Ludhiana, (herein referred as 'the appellant') awarding compensation to the tune of Rs.2,20,000/- alongwith interest @ 9% per annum in favour of the claimants-respondents No.1 and 2 (herein referred as 'the claimants') and against the appellant and respondents No.3 and 4 jointly and severally on account of the death of Pruful Kumar in a motor vehicular accident. The claimants had sought compensation on the death of their son Pruful Kumar, having taken place as a result of rash and negligent driving of respondent No.3. The claim petition was contested by the appellant and respondents No.3 & 4. In their written statements, they denied the allegations. The appellant further pleaded that respondent No.3 was not holding a valid driving licence or valid documents relating to the offending vehicle at the time of accident. From pleadings of the parties, following issues were framed by the Tribunal:- 1. Whether the claimants are the legal representatives of the deceased Pruful Kumar ? OPA 2. Whether accident took place as a result of rash and negligent driving by Surinder Singh respondent No.1 ? If so its effect ? OPA 3. Whether the offending vehicle was being driven without valid registration certificate at the time of alleged accident ? If so its effect ? OPR-3 F.A.O.No.1707 of 2009 (O&M) 2 4. Whether the claimants are entitled to compensation from the respondents ? If so how much and from whom? OPA 5. Relief. While deciding issues No.1 and 2 in favour of the claimants and issue No.3 against the appellant, accepted the claim petition. The only grievance of the appellant is that though onus to prove issue No.3 was upon the respondents yet they have not successfully discharged the onus. Respondent No.3, being the driver was duty bound to place on record the driving licence but he did not appear in the Court. As such, he was proceeded against exparte. In any case, the appellant summoned the driving licence from the criminal file but the said licence was not found there. However, the application filed by the appellant for procuring the presence of respondent No.3-driver was declined with the findings which are reproduced as under:- “Thus it appears that respondent No.1 is evading service and is not responding to the summons and the case is lingering on since 2005. In these circumstances, the request of the counsel for respondent No.3 to again issue fresh summons to respondent No.1 is declined. However, another opportunity is afforded to respondent No.3 Insurance Company to produce its evidence at own responsibility on 22.09.2008.” Sh.L.C.Bector, Advocate, counsel for the claimants submitted that respondent No.1 and 2 were proceeded ex-parte in this claim petition. At the most the insurance company would be entitled to recovery rights if any and time and again sending summons would be a futile exercise. Thus, according to the appellant, since respondent No.3 had failed to produce the driving licence, therefore, insurance company was successful in shifting the onus. As such, the Tribunal should have drawn the inference against respondents No.3 and 4 and would have at least given recovery rights to the appellant. Heard. Having scrutinized the impugned judgment as well as order dated 09.09.2008, passed by the Tribunal, it transpires that the insurance company did its best for proving that respondent No.3 was not holding a valid driving licence. Hence the best efforts made by the F.A.O.No.1707 of 2009 (O&M) 3 insurance company to have the presence of Surinder Singh respondent No.3, from whom the driving licence could be got proved remained in vein as he did not come forward to answer the allegations as set up by the claimants in their claim petition and produce the driving licence, if he had. Again the insurance company summoned the file of the criminal case pending against respondent No.3 where also the driving licence was not traced. The insurance company moved an application for summoning respondent No.3 for producing the driving licence but he did not appear. Ultimately, the Tribunal while holding that the inference would be drawn against respondent No.3 for his non-appearance and the recovery rights could be granted to the appellant, dismissed the application. It was further observed that to summon respondent No.3 again would be futile exercise but these facts were not taken note of by the Tribunal at the time of disposal of the case and issue No.3 was decided against the appellant just with one line that respondent No.1 was not holding a valid and effective driving licence. In any case, if respondent No.1 was not holding a valid driving licence, then certainly, it was obligatory on the part of the Court to grant recovery rights to the appellant against respondents No.3 and 4 but this illegality committed by the Tribunal has rendered the findings on issue No.3 as invalid and has caused serious prejudice to the rights of the appellant. Accordingly, findings returned on issue No.3 are reversed to the extent that since respondent No.3 was not holding a valid driving licence at the time of accident, therefore, respondents No.3 and 4 i.e. driver and owner respectively are fastened with the liability to pay the compensation and in case the insurance company has made the payment then it would have the liberty to recover the same from respondents No.3 and 4. Resultantly, I allow this appeal and modify the award with the observations that the appellant and respondents No.3 and 4 would be liable to pay the compensation. In case, the insurance company pays the compensation to the claimants then it would be at liberty to recover the same from respondents No.3 and 4, who are jointly and severally liable to pay the same. No order as to costs. (A.N.Jindal) Judge 01.12.2009 mamta-II