F.A.O.NO. 4708 OF 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 4708 OF 2009(O&M) Date of decision:8th October, 2010 Dilbagh Singh and another .......Appellants Versus M/s National Insurance Company Limited and another ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Vijay Lath, Advocate, for the appellants. Mr. Suvir Dewan, Advocate, for respondent No. 1. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) Civil Misc. No. 22530-CII of 2009 Application is allowed. For the reasons stated in the application, the delay of 1682 days in filing the appeal is condoned. FAO NO. 4708 of 2009 1. The appeal is by the representatives of the deceased who was a second driver employed under the owner/insured. The accident took place on 25.06.1996, when the driver was attending some repairs and a truck dashed against the vehicle. It appears that originally an F.A.O.NO. 4708 OF 2009 2 application had been filed under Section 166 of the Motor Vehicles Act(hereinafter referred to as the 'Act') and it was dismissed. Subequently, an application under Section 163-A of the Act was filed and the contention was that the accident took place by the use of a motor vehicle and therefore, an application under Section 163-A of the Act was maintainable. It was also contended that the driver did not have a valid driving licence. It appears that the case was decided ex parte against the other driver and owner of the vehicle. The insurer had been exonerated on the ground that the driver did not have a valid driving licence. 2. I cannot sustain the award of the Tribunal against the driver and owner by the only fact that the other driver did not have a valid driving licence. It must be noticed that the possession of driving licence itself was irrelevant in the manner in which the accident was narrated. The accident did not take place by the driving of the driver and it is under an exceptional circumstance when the deceased was attending some repairs, he was crushed by collision of truck against the insured's vehicle. This situation has been adverted even in the judgment of the Hon'ble Supreme Court in National Insurance Co v Swaran Singh (2004) 3 SCC 297 where the Hon'ble Supreme Court illustrated two instances as when the issue of driving licence would be irrelevant i) when the accident took place due to Act of God and ii) when there was mechanical defect in the vehicle and the accident was not due to any negligence of the driver. These examples given in F.A.O.NO. 4708 OF 2009 3 Swaran Singh's case(supra), are merely illustrative and cannot rule out a situation when the driver was not in any way involved in a truck dashing against the stationary vehicle which was being attended for some repairs by the deceased alternate driver. I would therefore, find the fact that the driver did not have a driving licence is irrelevant. 3. Learned counsel appearing for the Insurance Company would contend that already an application under Section 166 of the Act had been dismissed and order was passed only under Section 163- A of the Act. If the Tribunal has found that the accident was result of a use of motor vehicle by applying an expansive meaning to the expression “use of motor vehicle”, it has a legal basis in the manner it has been understood through several decisions of the Hon'ble Supreme Court. The said aspect has been considered by this Court in National Insurance Company Ltd. vs. Kamlesh in FAO NO. 3836 of 2009 decided on 26.07.2010. If a petition under the Motor Vehicles Act is permissible, the fact that an earlier application filed under Section 166 of the Act was dismissed, in my view is not relevant. The strict principles of Order 2 Rule 2 cannot be applied while securing the benefit of compensation for the representatives of the deceased in a motor accident. 4. Learned counsel brings support to his own contentions in the following citations:- Jitendra Kumar vs. Oriental Insurance Co. Ltd. and others (2003)6 SCC 420, that held that in a fire caused resulting in damage to the vehicle due to mechanical failure and an injury F.A.O.NO. 4708 OF 2009 4 sustained by a person, the contention by the insurer that it is not liable by merely pointing out to the fact that the driver did not have a valid driving licence is not acceptable. This illustrates another facet of what was laid down in Swaran Singh's case(supra) refer to above. In National Insurance Co. Ltd. vs. Nitin Khandelwal(2008) 7 SCALE 351, the Court found the fact that the driver did not have a valid driving licence, ought not to be taken as material in a case where the vehicle met with an accident and there was a finding that the driver was not at fault. In National Insurance Co. Ltd. vs. Parveen Kumar and others (2005) 1 P.L.R.230 , the Insurance Company was found liable when the accident was due to mechanical failure but the driver did not produce the driving licence. In Raghupati Singh vs. Kalua and others(2006)1 R.C.R.(Civil ) 240 was another illustration of a case of liability for an insurer when the accident was due to a mechanical failure and the driver did not have a valid driving licence. 5. The Insurance Company is under circumstance liable to satisfy aside the claim and the award passed by the Tribunal is modified to indemnify the insured for the claim arising out of the accident. The appeal is allowed to the above extent. [K.KANNAN] JUDGE 8th October, 2010 Shivani Kaushik