IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 1 of 2005 Date of Decision : July 17, 2009 National Insurance Company Appellant Versus Smt. Resham Kaur and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Ms. Sunita Sharma, Advocate, for the appellant. For the respondents : Mr. Rajesh Verma, Advocate vice Mr. Rajinder Dogra, Advocate, for respondents No. 2 and 3. Sanjay Karol, J. (Oral) The present appeal has been filed by the insurer M/s National Insurance Company assailing the impugned award dated 14.1.2004 passed by the Motor Accident Claims Tribunal–I, Sirmaur District at Nahan, H.P. in M.A.C. Petition No. 33-MAC/2 of 2003, titled as Iqbal Singh versus Kuldeep Singh and others. In a claim petition filed under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act) the Tribunal awarded Rs. 36,643/- in favour of the claimant who sustained injuries on his body as a result of a motor accident which took place on 25.11.2002. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 The claim petition was contested by the insurer on the ground that the driver did not possess a valid and effective driving licence and consequently the material terms and conditions of the insurance policy stood breached. Hence the insurer could not have been held liable to have indemnified the insured. Based on the pleadings of the parties the Tribunal framed the following issues: “(1) Whether the petitioner has received injuries in the accident when his scooter No. HP-17-5695 was hit by three-wheeler No. HP-59-0062 which was being driven rashly and negligently by respondent No. 1, if so, its effect ? OPP (2) If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom ? OPP (3) Whether the driver of the three-wheeler respondent No.1 was not having a valid driving licence to drive the vehicle and that the vehicle was being plied in contravention of the terms and conditions of the Insurance Policy, if so, its effect ? OPR-3 (4) Relief.” Issue No. 3 was answered as under: Para 14. “The onus to prove this issue was on Insurance Company that the driver of the three- wheeler was not having a valid driving licence at the time of the accident. But the Insurance Company has failed to produce any evidence. The respondent 3 No.1 driver of the vehicle has specifically proved on record that he was having a valid driving licence as per statement of RW 1 Devinder Singh who has placed on record the photocopy of driving licence Ext. R1. Accordingly, issue No.3 is decided against the respondent No.3.” Aggrieved of the same the insurer alone has filed the appeal challenging the aforesaid finding. Heard the learned counsel for the parties and also perused the record. There is no dispute that the vehicle in question was insured by the insurer. There is also no dispute that the driver was possessed with a driving licence Ext. R-1 and in terms thereof, he was entitled to drive light motor vehicle. The licence was issued on 15.5.2000 and was valid up to 15.7.2007. There is also no dispute that the vehicle in question, an auto-rickshaw was to be used for carriage of passengers in accordance with the permits (Contract carriage or stage carriage). This is so evident from the Insurance Policy Ext. R-3. The accident took place on 25.11.2002. The insurer led evidence by examining Sh. Devinder Singh (RW-1), Motor Licencing Clerk, Registration & Licencing Authority, Paonta Sahib, H.P. according to whom, to enable the licence holder to drive an auto-rickshaw and a three-wheeler a separate endorsement is required to be carried out as the licence holder falls 4 within the definition of a paid employee. Importantly this witness has not been cross examined on this point by any one. That apart in similar circumstances the Division Bench of this Court in New India Assurance Company Ltd. versus Sh. Suraj Parkash and others, 2000 (2) Shim. L.C. 262, after considering various judicial pronouncements of various High Courts and Apex Court held that keeping in view the provisions of Section 3(1) of the Motor Vehicles Act, 1988 no person could drive a motor vehicle in any public place unless he were holding an effective driving licence issued to him to drive the vehicle and no person could drive a transport vehicle unless his driving licence specifically entitled him to do so. In the said case since the driver of the van was not authorised by a specific endorsement to drive a transport vehicle hence he was held not entitled to be possessed with a valid and effective driving licence. In almost identical circumstances the Apex Court in New India Assurance Company Limited versus Roshanben Rahemansha Fakir and another, (2008) 8 SCC 253, where the driver having possessed a licence to drive a three wheeler was not having an endorsement to drive a commercial vehicle having description of a class of an auto- rickshaw delivery van, after considering the provisions of Section 41 of the Act and Clause 3(ii) of Notification dated 19.6.1992 issued by the Central Government under Section 41 of the Act, held that even 5 if the driver was possessed with a licence granted for a period of 20 years to drive a vehicle of category of three-wheeler, the licence could not be said to have been issued for a vehicle of a category of auto-rickshaw delivery van. Importantly the Court considered its earlier decisions as reported in National Insurance Co. Ltd. versus Swaran Singh and others, (2004) 3 SCC 297; National Insurance Co. versus Kusum Rai, (2006) 4 SCC 250 and National Insurance Co. Ltd. versus Annappa Irappa Nesaria and others, (2008) 3 SCC 464. Noticeably it clarified the circumstances under which the Court had passed the order in Annappa (supra). The amendment of the Act took place in the year 2001. Hence reliance on para 20 of the report in Annappa (supra) was sufficiently explained and distinguished in para 15 of Roshanben (supra). Admittedly there was no endorsement of the licence to drive an auto-rickshaw/three-wheeler which was being used to carry passengers. In this view of the matter the Tribunal erred in holding that the insurer failed to produce any evidence. The Court below has not correctly appreciated the position in law and hence findings on the said issue need to be set aside. The appeal is allowed and it is held that the material terms and conditions of the policy stood breached for the reason that the driver was not possessed with a valid and effective driving licence to 6 drive the vehicle at the time of the accident as such insurer cannot be held liable to have indemnified the insured. For the aforesaid reasons the appeal is allowed. As the amount already stands deposited it will be open for the insurer to recover the amount from the insured. (Sanjay Karol), Judge. July 17, 2009 (PK)