FAO No.5519 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5519 of 2010 (O&M) Date of decision: 12.12.2011 State of Haryana and others ...Appellants Versus Smt.Sugna Devi etc. ...Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Ajay Gulati, DAG, Haryana for the appellants. Ms.Vandana Malhotra, Advocate for respondent No. 3. **** Jitendra Chauhan, J. (Oral) The present appeal has been preferred against the award dated 7.6.2010, passed by learned Motor Accident Claims Tribunal, Bhiwani ( for brevity to be referred as 'the Tribunal'), whereby the claim petition of the claimants was accepted and the appellants were held liable to pay the amount of compensation. 2. Learned counsel for the appellants-State contends that respondent No.1 was holding a valid learner driving licence and taking training as a driver for heavy licence with Sh.Jagdish Chander, Driver Instructor. He further contends that no such accident occurred as alleged by the claimants, in their claim petition. He further contends that the bus was insured and therefore, the Insurance Company is liable to pay the amount of compensation. FAO No.5519 of 2010 (O&M) 2 3. On the other hand, the learned counsel for respondent No.3- Insurance Company, contends that the driver of the offending bus was not holding a valid driving licence and the respondent State being the owner of the said bus, is liable to pay the amount of compensation. In support of his contention, she has placed reliance upon the judgment delivered in Annal Automobiles vs. Ashish Kumar Shukla 2009 ACJ 1184 (Chhattisgarh High Court). 4. I have heard learned counsel for the parties and perused the record carefully. 5. The learned Tribunal in para No.17 of the impugned Award has observed as under:- “It is not disputed that the offending vehicle was insured with respondent No.4 at the time of accident. However, it is pleaded on behalf of Insurance Company that at the time of accident, driver of the offending vehicle was not holding a valid and effective driving licence. In this regard, he referred to documents Ex.R1 and Ex.2 issued in favour of respondent No.1. Ex.R2 (copy) driving licence was issued in favour of Sohan Lal, the respondent No.4 by Licencing Authority, Tohana and was valid for driving Motorcycle, Scooter and Light Transport Vehicle. The perusal of document Ex.R1 shows that the same was issued in favour of Sohan Lal respondent authorising him to drive Heavy Transport Vehicles but for a short duration being a learner's licence. Though, the FAO No.5519 of 2010 (O&M) 3 contention of learned counsel for respondents No.1 to 3 is that learner's driving licence is a valid licence under the rules and the insurer cannot take it as a defence to avoid its liability by relying upon the ratio of law laid down in case of National Insurance Co. Ltd. Vs. Swaran Singh and Ors. 2004(2) RCR (Civil) 114, but the plea taken in this regard is devoid of merit. Such type of driving licence is valid only when while driving a vehicle, the driver is accompanied by an instructor driver. No doubt while filing written statement, respondent Nos.2 and 3 took that plea and even produced driving licence (copy) Ex.R3 belonging to Jagdish Chander, but he was not produced for the reasons best known to them. It is well settled that pleadings cannot take proof of evidence unless proved by adducing oral as well as documentary evidence. So, from the evidence adduced by respondent Nos. 1 to 3, it cannot be said that driver of the offending vehicle was holding a valid and effective driving licence at the time of accident.” 6. Regarding the submission on issue No.1 that accident occurred or not, it is proved on record that the accident occurred on account of rash and negligent driving by respondent No.1. In this regard, FIR No.62 dated 19.2.2009, under Sections 279/304-A of the Indian Penal Code was registered against respondent No.1 at Police Station, Sadar Fatehabad. A charge sheet was filed against the driver-respondent No.1 of the alleged bus FAO No.5519 of 2010 (O&M) 4 for rash and negligent driving. The learned Tribunal has rightly concluded that it is proved that du to use of offending vehicle, the death of son of the claimants took place. 7. During the pendency of this appeal, the appellant-State of Haryana, filed CM No.17573-CII of 2011, under Order 41 Rule 27 of the Code of Civil Procedure on 20.7.2011 for affording an opportunity to examine Sham Lal, driver and Jagdish Chand, Instructor. The lower court record shows that sufficient opportunity was granted to the appellant-State to produce the evidence. The lacunae cannot be filled at this stage. The appellant could not produce its evidence inspite of the fact that these witnesses were employees of the Transport Department and under their control. The appellant-State and driver Sohan Lal filed joint written statement, but Sohan Lal, driver of the offending vehicle was withheld by it for the reasons best known to it. So, the adverse inference is to be drawn against the appellant, as this evidence was within the knowledge and control of the appellant-State. Thus, no ground is made out to allow this application at this stage, which is dismissed. 8. The Insurance Company has been rightly granted the recovery rights from the appellants and the driver. 9. As a sequel of above discussion, no interference is warranted in the well reasoned award passed by the learned Tribunal. As such, the present appeal fails and the same is dismissed being devoid of any merit. 12.12.2011 (JITENDRA CHAUHAN) gsv JUDGE