FAO No.1404 of 2008(O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... FAO No.1404 of 2008 (O&M) Rishi Pal ... Appellant VERSUS Smt. Santosh and others ... Respondents and FAO No.1847 of 2008 (O&M) Pawan Kumar ... Appellant VERSUS Smt. Santosh and others ... Respondents Date of Decision : November 09, 2009 CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Mohit Garg and Mr.Munish Mittal, Advocates for the appellants. Mr.Vishal Goyal, Advocate for Mr.Vivek Singhal, Advocate (in FAO No.1404 of 2008) Ms.Sonal Dutta, Advocate for Mr.Vikas Mohan Gupta, Advocate (in FAO No.1847 of 2008) for the respondent – Oriental Insurance Company Ltd. A.N.JINDAL, J.- This judgment shall dispose of two connected appeals bearing FAO Nos.1404 of 2008 and 1847 of 2008, both have arisen out of the award dated 17.1.2008 passed by Motor Accident Claims Tribunal, Karnal (herein referred as the Tribunal) awarding compensation to the tune of Rs.7,30,000/- along with interest at the rate of 7.5% per annum in favour of the claimants – respondents No.1 to 4 (herein referred as the claimants) and FAO No.1404 of 2008(O&M) [2] against the appellants (driver and owner of the offending vehicle i.e. Truck bearing Reg.No.HR46A-0855) and respondent Oriental Insurance Company jointly and severally to the extent of 50% of the compensation, with a further rider that in case of recovery of the amount from the Insurance Company, it shall be at liberty to recover the same from the insured – appellant Pawan Kumar, who is owner of the offending vehicle. FAO No.1404 of 2008 has been filed by the driver Rishi Pal, while FAO No.1847 of 2008 has been filed by the owner Pawan Kumar of the offending truck, challenging the aforesaid award. A brief resume of facts is that on 28.8.2005, Ramesh Kumar (deceased) accompanied by Surinder Pal and Ilam Chand, both residents of Kalri Jagir were coming back to their village on motorcycle bearing Reg.No.HR05N-1921. Ramesh Kumar was driving the motorcycle. When they reached one KM short of village Bhagwanigarh, then a truck bearing Reg.No.HR-46A-0855 (herein referred as `the offending truck') driven by appellant Rishi Pal (herein referred as `the driver') rashly and negligently and in a zig-zag manner came and hit the motorcycle, as a result of which Ramesh Kumar as well as two other riders fell down in the ditches and suffered injuries. Ramesh Kumar died at the spot. The FIR NO.188 dated 28.8.2005 was registered and the driver was challaned. The claimants being the legal representatives of Ramesh Kumar filed a claim petition seeking compensation to the tune of Rs.50,00,000/-, which was contested by the appellants and the Insurance Company by filing different replies. The driver while admitting the accident stated that it was the deceased, who was rash and negligent. As FAO No.1404 of 2008(O&M) [3] regards the compensation, the driver denied all the allegations and prayed for declining the claim petition. The owner in his separate reply, besides some preliminary objections, took the same pleas as taken by the driver, and pleaded for dismissal of the claim petition. However, the owner submitted that the offending vehicle was insured with the Oriental Insurance Company vide policy No.261700 for the period commencing from 9.9.2005 to 8.9.2006. The respondent – Insurance Company while admitting the vehicle to be insured denied all other allegations. From the pleadings of the parties, the Tribunal framed the following issues:- “(1) Whether the accident in question took place on 29.8.2005 due to rash and negligent driving of vehicle bearing No.HR46A-0855 by respondent No.1 Rishi Pal in which Ramesh Kumar has died, as alleged? OPP (2)If issue No.1 is proved, whether the petitioners are entitled to any compensation, if so, how much and from whom? OPP (3)Whether the vehicle in question was being driven in violation of the terms and conditions of the Insurance Policy, if so, its effect? OPR (4)Relief.” Both the parties led evidence. The Tribunal after appreciating the evidence and observing that it is a case of contributory negligence of the driver Rishi Pal as well as the deceased Ramesh Kumar, decided issue No.1 accordingly. While deciding issues No.2 and 3, the Tribunal observed that the claimants were entitled to a sum of Rs.7,30,000/-. However, on account of the contributory negligence, the appellants and the respondent FAO No.1404 of 2008(O&M) [4] Insurance Company were held liable to pay 50% of the amount of compensation to the claimants. Similarly, it was further held that since the deceased was not holding a valid driving licence, therefore, all the three respondents were jointly and severally liable to pay the compensation. However, in case of payment by the Insurance Company, it was given liberty to proceed to recover the said amount from the insured. Now, in these two appeals filed by the driver and the owner of the offending vehicle, it has been urged that the onus to prove issue No.3 was upon the Insurance Company, therefore, the Company having failed to shift the onus, was solely liable to pay the compensation. Having heard the rival contentions, it is essential to reproduce the observations of the Tribunal with regard to the validity of the driving licence, which are as under:- “30. Nextly, it has come in the statement of the respondent No.1 himself that for getting the licence, he has never visited Nagaland and got it prepared from an agent in Indri. In view of the clear cut admission and no cross-examination conducted on behalf of the learned counsel for the claimants, the genuinity of the driving licence issued in favour of the respondent No.1 has become doubtful. When the respondent No.1 himself did not visit the Nagaland for the preparation of the driving licence, it can be said to be a procured and forged document and meaning thereby, there was no driving license at all with the respondent No.1 at the time of the accident. Thus, in view of the law laid down in United India Insurance Company Limited vs. FAO No.1404 of 2008(O&M) [5] Lehru & others, 2003 ACJ 611, the Insurance Company would remain liable to make the payment to the third party but it may recover the amount from the insured.” Having probed into the matter, it may be observed that the driver while appearing in the witness box stated himself to be a resident of village Rajepur, Tehsil Indri, District Karnal and tendered the driving licence (Ex.R1) to prove that he was having a valid driving licence. The driving licence Ex.R1 appears to have been got issued from the State of Nagaland and he himself admits that he never visited that State for preparation of the driving licence. Notwithstanding the fact that onus was upon the Insurance Company to prove the ingenuineness of the said driving licence and it could either prove it from the evidence led by the driver/owner or the claimants or by leading its own evidence or from the circumstances of the case. The issuance of a driving licence is not a sheer formality and Section 3 to 28 of the Motor Vehicles Act, 1988 (herein referred as `the Act') govern its issuance and revocation, besides maintenance of the State Registers, renewal and cancellation of the licenses. Section 3 of the Act states that no person was competent or qualified to drive a motor vehicle at any public place, or any transport vehicle [(other than a motor cab or motor cycle, hired for his own use or rented under any scheme made under sub-section (2) of Section75)] without a driving licence. Section 4 of the Act indicates that no person under the age of 18 years shall drive a motor vehicle at any public place, except motor cycle having engine capacity not exceeding 50cc and no person under the age of FAO No.1404 of 2008(O&M) [6] 20 years could drive a transport vehicle at any public place. While fixing responsibility of the owner/s of the vehicles, Section 5 of the Act provides that no owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Sections 3 and 4 of the Act. Sections 7 and 8 relate to the issuance of the learner's licence and Section 9 refers to the qualifications of a person and the authority, where he could apply and receive the driving licence, relevant provisions of which are reproduced as under:- “9.Grant of driving licence - (1) Any person who is not for the time being disqualified for holding or obtaining a driving licence may apply to the licensing authority having jurisdiction in the area - (i)in which he ordinarily resides or carries on business, or (ii)in which the school or establishment referred to in section 12 from where he is receiving or has received instruction in driving a motor vehicle is situation for the issue, to him of a driving licence. (2) Every application under sub-section(1) shall be in such form and shall be accompanied by such fee and such documents as may be prescribed by the Central Government. (3) If the applicant passes such test as may be prescribed by the Central Government, he shall be issued the driving licence: Provided that no such test shall be necessary where the applicant produces proof to show that – (a)(i) the applicant has previously held a driving licence to FAO No.1404 of 2008(O&M) [7] drive such class of vehicle and that the period between the date of expiry of that licence and the date of the application does not exceed five years, or (ii) the applicant holds or has previously held a driving licence to drive such class of vehicle issued under section 18, or (iii) the applicant holds a driving licence to drive such class of vehicle issued by a competent authority of any country outside India, subject to the condition that the applicant complies with the provisions of sub-section(3) of section 8.. (b) ... ... ... (4) & (5) ... ... ... (6) The test of competence to drive shall be carried out in a vehicle of the type to which the application refers:........... .... .... ..... .....” From the reading of the aforesaid provisions, it is apparent that Section 9 refers to the procedure for the grant of driving licenses and passing of a test as prescribed by the Central Government, is a pre- condition for grant of such licence. Further, this Section also provides that the pre-condition of the test may be exempted in case of those applicants, who possess a driving certificate issued by any institution recognised in this behalf. In the instant case, the simple statement made by the driver of the offending vehicle is that he is a resident of Indri in the State of Haryana; FAO No.1404 of 2008(O&M) [8] he never went to the State of Nagaland; he never undertook any driving test. As such, no evidence was required to be produced by the Insurance Company to prove that the licence as tendered by the driver was a fake one. It would be pertinent to mention here that the provisions of the Act as also of The Punjab Motor Vehicles Rules, 1989 are not being complied with by the State Governments. No verification of the addresses of the persons seeking licenses and with regard to their learning test are made, and the driving licenses are being issued abruptly to the untrained and unskilled drivers in casual manner. Resultantly, thousands of casualties are committed by such drivers. Therefore, the State Governments should be vigilant in issuing the licenses, particularly to the persons, who are residents of other States and have not sought any proper training and do not fulfill the eligibility conditions. Moreover, the States must discourage driving by those persons, who are holding driving licenses, issued by other States, of which they are not bonafide residents. In view of the above discussion, since the driver of the offending vehicle, namely Rishi Pal was not a bonafide resident of the State of Nagaland, nor he ever visited that place to take any driving test or to get the driving licence prepared, therefore, the driving licence (Ex.R1) possessed by him, in no manner could be termed as genuine and valid one. The findings returned by the Tribunal on issue No.1 are affirmed. No other argument was raised. Hence, appeals dismissed. November 09, 2009 ( A.N.JINDAL ) `gian' JUDGE