HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 75 of 2005 Reserved on: 25.6.2009 Decided on: 4.8.2009 New Jyanti Bus Service ………Appellant. Versus Oriental Insurance Co. Ltd. and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Vinay Kuthiala, Advocate. For respondent No.1: Mr.Lalit K. Sharma, Advocate. For respondent No.2: Mr.Ajay Chandel, Advocate. For respondent No.3: Mr.Jagdish Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant/ owner under Section 173 of the Motor Vehicles Act against the award passed by the learned Motor Accident Claims Tribunal (I), Kangra at Dharamshala, dated 1.1.2005, vide which the claim petition filed by respondent No.2 as claimant was allowed and she was granted compensation to the extent of Rs.4,82,057/- and the amount was payable by respondent No.1 Insurance Company, who was held entitled to recover the same from the owner/present appellant. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that respondent No.2, minor through her mother and natural guardian, filed a claim petition under Section 166 of the Motor Vehicle Act. It was alleged by the petitioner that on 23.5.2001, she was standing on the road side at Village Sapri when a bus bearing No.HP 36 3925 came in a rash and negligent manner from Dharamshala to Jawala Mukhi on wrong side being driven by respondent No.3 and hit the claimant, who was standing on the extreme right side of the road. It was alleged that the accident was the result of rash or negligent driving of respondent No.3. The petitioner suffered injuries and her right foot was amputated and accordingly she claimed compensation to the extent of Rs.20,25,000/-. The appellant was impleaded as owner of the vehicle. The learned Tribunal, on conclusion of the case, held that the accident took place due to the rash or negligent driving by the driver of the vehicle, the present respondent No.3, and the claim petition was allowed, as detailed above, and the amount was held payable by the Insurance Company, who was held entitled to recover it from the owner/appellant. I have heard the learned counsel for the parties and have gone through the record of the case. A perusal of the appeal filed by the appellant shows that the appellant has not challenged the findings of the learned Tribunal that the accident took place due to the rash or negligent driving. The appellant has also not challenged the quantum of the compensation - 3 - awarded in favour of the claimant. The only dispute raised in the grounds of appeal and during the course of arguments is that the learned Tribunal did not summon the record, which could have proved that the driver was holding a valid and effective driving license and since the license was renewed and the renewal was as per the Standing Instructions issued by the State of Himachal Pradesh that it is renewed after its genuineness is confirmed from the issuing authority and, therefore, the learned Tribunal came to a wrong conclusion that the driver was not holding a valid and effective driving license. The learned counsel for the appellant also pressed for allowing the application filed by him under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for producing additional evidence before this Court. The learned counsel for the appellant, in support of his submissions, had relied upon the decision of this Court in National Insurance Co.Ltd. versus Ishroo Devi and others, 1999 ACJ 615. The facts of that case were different from the present case since it was held in that case that there was no evidence that the Society which employed the driver was having knowledge that the driver was not holding a valid license or that the license held by him was fake and forged. It was held that the insured Society was not guilty of any breach and the Insurance Company was not exempted from its liability. On the other hand, the learned counsel for the Insurance Company/respondent No.1 had submitted that - 4 - the learned trial Court, on the basis of the evidence, had come to a right conclusion that the driving license was a forged one. It was submitted that the driving license, whichever so produced by the driver, was got verified and it only proved the renewal of the license from Dehra and Dharamshala but did not prove that it was validly issued from any of these offices or from any other office. It was submitted that it is for the driver to produce the license and once the license has been produced, which has been got verified by the Insurance Company and there is no evidence to this effect that it was not issued from Dehra or Dharamshala, the Insurance Company is absolved of its liability and as such the findings of the learned Tribunal do not call for an interference of this Court. To substantiate his plea, the learned counsel for respondent No.1 had relied upon the decision in New India Assurance Co.Ltd. versus Kamla and others, 2001 ACJ 843, in which it was held that the Insurance Company is liable to the third parties irrespective of the fact that there has been any breach or violation of the policy conditions. However, it was held that the Insurance Company can recover from the insured the amount so paid to the third parties, if, as per the policy conditions, the insurer had no liability to pay such sum. Reliance was also placed upon the decision in National Insurance Co.Ltd. versus Geeta Bhat and others, 2008 ACJ 1498, wherein it was held that the Insurance Company was liable for payment to the third party claimants - 5 - with liberty to recover the amount from the owner and driver of the vehicle in appropriate proceedings. In that case, the Tribunal had found that the Insurance Company failed to lead evidence in support of its assertion and held that it is liable. Appeal by the Insurance Company was dismissed by the High Court. The Apex Court assumed that license of truck driver was fake and accordingly it was held that the Insurance Company is liable to make payment to the third party and get the same recovered in appropriate proceedings. On appraisal of the record of the case, it is clear that the driver of the vehicle/respondent No.3 had appeared in the witness box as RW-4. He clearly stated that he has brought the original driving license today and Ext.RW-1/A is the correct photocopy of the original. He also stated that this original driving license was issued by the MLO, Dharamshala on 14.2.1989. The Insurance Company has to get the license verified, which is produced by the driver during the trial of the case. In regard to this license, the respondents had examined RW-2 Shri Fateh Deen, Licensing Clerk from the office of SDM, Dehra, who stated that the license of Kishori Lal was renewed for HTV on 5.3.1999 valid upto 4.3.2002. He stated that according to their record, the original license was issued from the Licensing Authority, Dharamshala. He admitted that the license is renewed after verification from the issuing authority. RW-3 Shri Vineet Kumar, Licensing Clerk from the office of SDM, Dharamshala - 6 - has stated that the license (number given therein) was not issued from their office on 14.2.1989. He stated that from their record, the license was issued but no such license was issued on 14.2.1989 in the name of Kishori Lal. From the above discussion of the evidence, it is very much clear that the driver of the vehicle, namely, Kishori Lal RW-4 is emphatic that he got the license issued from the MLO, Dharamshala and he also gave the date of issue as 14.2.1989. However, as per the evidence discussed above, no such license was issued in the name of Kishori Lal from the office of Licensing Authority, Dharamshala on 14.2.1989. Once there is evidence to this effect that no such license was issued from Dharamshala from where the driver claims to have got the original license issued on a specific date, no other evidence was required to be led by the Insurance Company to prove that the said license was issued from some other place, namely, Hoshiarpur, as sought to be argued, alongwith the application filed in this regard before this Court. Coming to the application filed by the appellant, being CMP No.113 of 2005, it has been alleged in the application by the applicant that he may be permitted to summon the record from the office of the Licensing Authority, Hoshiarpur. Alongwith the application, a photocopy of the certificate was attached, which is also from the office of Licensing Authority, Dharamshala. Another photocopy of an application addressed by Kishori Lal to District Transport Officer, Hoshiarpur was attached - 7 - and some report, allegedly made by the District Transport Officer and attested by the Notary Public, was there that the record pertaining to the license (number given) was lost during the shifting of the office from old building. No such affidavit has been filed by the appellant attaching therewith an affidavit of the driver that his license was issued from Hoshiarpur and it should be got verified from Hoshiarpur. There is no material on record to show that this license produced by the driver was ever issued by the Licensing Authority, Hoshiarpur. The driver is emphatic that he got the license issued from Dharamshala and there is no material on record to hold that the license was issued from Hoshiarpur and, therefore, at this belated stage, the application filed by the owner to summon the record from Hoshiarpur can be said to have been filed just to delay the case. The claim petition took more than 2 years to be decided by the learned Tribunal and no such steps were taken by the present appellant or its driver to prove the license in his favour and the license which he produced on record was got verified by the Insurance Company and there is evidence to show that no such license was issued by the Licensing Authority, Dharamshala, as claimed by its driver. Therefore, keeping in view the evidence on record, no useful purpose can be served by allowing this application at this belated stage, particularly, when there is no evidence to show that any such original license was issued from Hoshiarpur and the photocopy filed with the application does not make out a - 8 - case in favour of the appellant. The report of the District Transport Officer on this photocopy is not dated when it was issued under his signatures and simply on learning that some record of the office was lost, it appears that the present application was filed just to delay the case. No case is made out for allowing the application filed by the appellant, which is dismissed accordingly. I have already discussed the evidence and had come to the conclusion that the Insurance Company had discharged the burden which was upon them to get the license verified which clearly prove that no such license was issued from Dharamshala in favour of the driver. Coming to the plea that there are Standing Instructions of the Government and the license is renewed after verification from the Issuing Authority. Neither any such Instructions nor any Rules have been placed on record. However, as per the practice, an intimation is sent to the Issuing Authority to reply to the query made if the license was issued from their office or not and in case no reply is received within a reasonable period, the Licensing Authority renews the license. However, this is not a proof that the license was originally issued from the office from where it was claimed to have been issued and the renewal of a fake license will not validate the license in favour of the driver which was proved to have not been issued by the Motor Licensing Authority, Dharamshala. - 9 - In view of the above discussion, I accordingly hold that the findings recorded by the learned Tribunal are based upon correct appreciation of evidence and law and they do not call for an interference by this Court and as such are liable to be affirmed. Accordingly, the appeal filed by the appellant is dismissed alongwith costs. CMP No.113 of 2005: In view of the above discussion, the application also stands dismissed. August 4, 2009. (V.K. Ahuja), (TILAK) Judge.