FAO No. 54 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 54 of 2008 Date of decision 11.5.2010. United India Insurance Company Ltd. ...... Appellant. versus Smt.Santosh and others ...... Respondents. Present : Mr. Neeraj Khanna, Advocate and Mr. Ravider Arora, Advocate for the appellant. Mr. Himanshu Raj, AAG, Haryana. Mr. Kanwaljit Singh, Senior Advocate with Mr. Ajay Singla, Advocate for respondent No.3. FAO No. 55 of 2008 United India Insurance Company Ltd. ...... Appellant. versus Sahil and others ...... Respondents. Present : Mr. Neeraj Khanna, Advocate and Mr. Ravider Arora, Advocate for the appellant. FAO No. 54 of 2008 2 Mr. Himanshu Raj, AAG, Haryana. Mr. Kanwaljit Singh, Senior Advocate with Mr. Ajay Singla, Advocate for respondent No.3. CORAM : - HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI. J. By this common order I intend to dispose of FAO No.54 of 2008 titled as United India Insurance Company Ltd. versus Smt. Santosh and others and FAO No. 55 of 2008 United India Insurance Company Ltd. Versus Sahil and others as these appeals arise out of the same award and accident. These appeals have been directed by the Insurance Company against the award dated 5.10.2007 passed by learned Motor Accident Claims Tribunal, Kurukshetra for setting aside the same and the appellant be absolved from the liability. The facts are being taken from FAO No.54 of 2008. Briefly, as per allegations on 3.11.2005 Jasmer Singh (deceased), was returning from Kurukshetra towards his village on motorcycle bearing registration No HR-07-E-6774. His minor son Sahil was also riding with him in his lap and the motorcycle was being driven cautiously near the Circuit House, Kurukshetra on the hundred feet wide road, which leads to the G.T. Road from the residence of the Deputy Commissioner and passes through Sector 4 and 8 etc. His cousin Jagmal Singh was coming on another motorcycle and was at some distance behind him. Near the crossing of Sectors 4 and 8 deceased was about to take a turn from the road towards his village Umri. The Gypsy jeep bearing registration No. HR 65-1457 of the FAO No. 54 of 2008 3 police department, Kurukshetra came from the side of G.T. Road. The said vehicle was being used as a PCR van. It was driven rashly and negligently and at a fast speed by respondent No.1. Mahender Singh EHC and some other police officials were sitting inside the offending vehicle. Without blowing any horn, the offending jeep hit the motorcycle of Jasmer Singh. As a result thereof, he and his minor son suffered injuries. The injuries of Jasmer Singh proved fatal and he died on 7.11.2005 in PGI MS Chandigarh where he had been referred. Smt. Santosh widow and Sahil minor son of Jasmer Singh (deceased) preferred the MACT case No. 111 of 2007 claiming compensation for the death of Jasmer Singh. They averred that they were dependent on the income of Jasmer Singh, aged 35 years and was earning Rs.10,000/- per month from cultivation. They claimed a total compensation of Rs.20,00,000/- from the respondents. In the other petition preferred by Sahil minor through his mother Smt. Santosh as his natural guardian and next friend, it was alleged that the minor petitioner was aged about 9 years and studying in 4th class and he suffered injuries including fracture of left lower leg. He was taken to LNJP Hospital, Kurukshetra and further treatment was received from Dr. Himanshu Anand and amount of Rs.1,00,000/- was spent on his treatment and he underwent pain and suffering and total compensation of Rs.5,00,000/- was claimed from the respondents. Respondent no.1 filed written statement and denied the factum of accident but it was averred that it did not take place in the FAO No. 54 of 2008 4 manner it is stated. Respondent No.1 submitted that he was driving the offending jeep on the correct (left hand side) of the road and at a normal speed. At the crossing of the road, the motorcyclist, coming from the opposite direction, took a sudden turn in breach of the traffic rules and in that process, the motorcyclist hit his motorcycle against the front right side door of the Gypsy as a result of which the motorcycle fell down and the motorcyclist and his son suffered injuries. The motorcyclist himself was responsible for the accident as he drove the bike in a rash and reckless manner. A joint written statement was filed by respondents No. 2 and 3, on similar lines, while a separate written statement was filed by respondent No.4 the Insurance company. The age and income of the deceased, the dependency of the petitioners on his income, the number and nature of injuries suffered by Sahil and the amount spent on treatment etc. were denied tooth and nail and it was averred that petitioners have indulged in exaggerations and have pleaded totally false facts and are not entitled to any compensation. Objection was also raised that the person driving the offending jeep was not holding a valid and effective driving licence and for that reason also the Insurance company is not liable to pay compensation. Following issues were framed.:- 1. Whether the accident in question resulting in to death of Jasmer Singh and injuries to Sahil claimant, was caused due to rash and negligent driving of offending Gypsy FAO No. 54 of 2008 5 No. HR 65-1457 by its driver EHC Mahender Singh No. 236, respondent No.1? OPP. 2. If issue No. 1 is proved, whether the claimants are entitled to compensation. If so, how much and from whom? OPP. 3. Whether respondent No. 1 was not having a valid and effective driving licence at the time of accident as alleged?OPR 4. Relief PW-1 Santosh petitioner appear as her own witness and petitioners examined PW-2 Jarnail Singh, PW-3 Dr. Manjeet Singh, Medical Officer of LNJP Hospital, Kurukshetra, PW-4 Ashish Gautam, Addl. Ahlmad, Pw-5 Jai Pal HC, PW-6 Jagmal and PW-7 Jai Pal. Claimants further relied upon documents Ex.P1-to P-43 and Mark A to D. On the other hand, Mahender Singh respondent No.1 appeared as RW-1 while respondent No.4 Insurance Company examined RW-2, Nar Singh Licensing Clerk, Licensing Authority, Jagadhri, (PW-3), Rajender Singh Licensing Clerk, Licensing Authority, Jagadhri and also relied upon the documents Ex. R-1 to R-3. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.7,70,000/- as FAO No. 54 of 2008 6 compensation to the claimant-Santosh etc whereas Rs.15,000/- to claimant Sahil along with interest @ 7.5% per annum from the date of filing the petition till its realization. All the respondents No.1 to 4 were held jointly and severally liable to pay the compensation amount. The amount of the share of minor petitioner-Sahil in both the cases was ordered to be deposited in a fixed deposit in a nationalized bank and the minor concerned shall be entitled to the refund together with interest accruing as and when he attains majority. Feeling dis-satisfied with the aforesaid award, appellant- United India Insurance Company Ltd. has filed the instant appeals. I have heard the learned counsel for the parties and have gone thorough the records of the case. Learned counsel for the appellant-United India Insurance Company has submitted that driver of the offending vehicle was not holding a valid driving licence and, therefore, the Insurance Company is not liable to pay the amount of compensation inasmuch as the terms of the policy have been violated. The accident in this case has taken place on 3.11.2005. Mohinder Singh respondent was holding a licence to drive motor cycle and car and the same was issued from 13.7.1990 to 12.7.1995. The said licence was thereafter renewed on 7.11.2005 upto 6.11.2010. So, Mohinder Singh was not holding any driving licence for the intervening period of 13.7.1995 to 6.11.2005. The learned Tribunal has relied upon an authority United FAO No. 54 of 2008 7 India Insurance Company vs. Shanti Devi and others 2007 (2) PLR 485 and on the strength of the same, the Insurance Company has been held liable. The Hon'ble Apex Court in authority National Insurance Company vs. Vidyadhar Mahariwala (2008-4) PLR page 746 held that in case the driving licence is not renewed on the day of accident in that case the Insurance Company is not liable. In the said case, the accident has taken place on 11.6.2004. The driving licence was initially valid for the period from 15.12.1997 to 14.12.2000 and thereafter from 29.12.2000 to 14.12.2003. It was again renewed on 16.5.2005 to 15.5.2008. The licence was not renewed from 15.12.2003 to 15.5.2005 and during the intervening period i.e. on 11.6.2004, the accident has taken place and the Hon'ble Apex Court has held that Insurance Company is not liable to pay the compensation on account of breach of the terms. In reply to the above said submissions, learned counsel for the respondents has submitted that the Insurance Company has not only to prove that the driver was not holding a valid driving licence but has to prove the fact that owner has the knowledge of the fact that driver was not holding a valid driving licence. To support this contention, learned counsel for the respondent has relied upon United India Insurance Company vs. Shanti Devi and others 2008 (3) RCR 541 and National Insurance Co. Ltd . vs. Swaran Singh and Ors. 2004(2) RCR Page 114. FAO No. 54 of 2008 8 This Court in authority United India Insurance Company vs. Shanti Devi and others 2007 (2) RCR 485 (supra) held that the renewal of the licence, after the expiry of one month, is a renewal of licence in terms of the Act, thus the driver would be considered to have a duly licenced. In the said case, the driving licence was valid from 21.12.1998 to 20.12.2001 and thereafter the same was renewed from 17.3.2004 to 16.3.2007. The accident has taken place on 1.2.2004 and this Court held that the Insurance Company is liable to pay the amount of compensation. I have given my thoughtful consideration to the rival submissions of the learned counsel for the parties and have gone through the records of the case. The controversy raised in the present appeal is what is the effect of non-renewal of driving licence on the date of accident if the driver was holding valid driving licence before the accident and after the accident ? The accident has taken place after the expiry of period of driving licence and thereafter the driving licence was renewed and whether in those circumstances Insurance Company is liable to pay the amount of compensation. This aspect of the case has been considered by the Hon'ble Apex Court in authority National Insurnace Company vs. Vidyadhar Mahariwala's case (supra). In that case, the driving licence was initially valid for the period from 15.12.1997 to 14.12.2000 and thereafter the same was renewed from 29.12.2000 to 14.12.2003. FAO No. 54 of 2008 9 The accident has taken place on 11.6.2004 i.e. after the period of expiry of the driving licence. The said licence was again renewed from 16.5.2005 to 15.5.2008 i.e. after the accident. The Hon'ble Apex Court has held that the Insurance Company is not liable to pay the compensation inasmuch as the driver was not possessing a driving licence on the date of accident. The ratio of the said judgment is that if the driver was holding a valid driving licence prior to the occurrence and got renewed after the occurrence. There is an intervening period during which the licence was not got renewed and there was an accident in that case, the Insurance Company is not liable. The facts of present case are similar to the facts of authority National Insurance Company vs. Vidyadhar Mahariwala's case (supra). Mohinder Singh respondent was holding a licence to drive the motor cycle and car, which was valid from 13.7.1990 to 12.7.1995. The accident has taken place on 3.11.2005. The said licence of Mohinder Singh was got renewed from 7.11.2005 to 6.11.2010. However, Mohinder Singh was not holding a driving licence during the intervening period 13.7.1995 to 6.11.2005 for a period of more than ten years and during the intervening period i.e. on 3.11.2005, the accident has taken place. So far as authority United India Insurance Company Limited vs. Shanti Devi and others (2007-2) PLR 465 is concerned that authority is not applicable to the facts of the present case as dispute in that case was regarding fake licence and it was not case of the any party in that case, that driving licence was not valid. FAO No. 54 of 2008 10 In authority United India Insurance Company Limited vs. Shanti Devi and others (2007-2) PLR 465, the Single Bench of this Court has held that if the driver was holding valid driving licence, prior to the occurrence and after the occurrence on the date of accident there was no renewal of the said licence. In that case, the Insurance Company would be liable. The accident has taken place on 1.2.2004. The driving licence was valid from 21.12.1998 to 20.12.2001 and thereafter got renewed from 17.3.2004 to 16.3.2007. However, the licence was not renewed from 21.12.2001 to 16.3.2004 and during the intervening period i.e. 1.2.2004 accident has taken place. This Court held that Insurance Company is liable. However, with due regard to the said authority, while sitting singly, I am bound to accept the Apex Court authority National Insurnace Company vs. Vidyadhar Mahariwala's case (supra) as in that case, it has been held that if driving licence is not renewed during the intervening period, when the accident has taken place, Insurance Company is not liable. However, keeping in view authority National Insurance Company vs. Swaran Singh and others' case (supra), the Insurance Company is liable to pay the compensation amount to the claimants at the first instance, however, the said company is entitled to recover the same from the owner and driver of the offending vehicle. With the aforesaid modifications in the Award, both the appeals stand disposed of accordingly. FAO No. 54 of 2008 11 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 11th , 2010 sv