IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.196 of 2004 Judgment reserved on: November 20, 2008 Date of Decision : December 15, 2008 United India Insurance Co. Ltd., …Appellant. Versus: Smt. Kunta Devi & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Sanjeev Kuthiala, Advocate For the respondents: None. SANJAY KAROL, JUDGE. M/s. United India Insurance Co. Ltd., (hereinafter referred to as ‘the insurer’) has filed the present appeal assailing the Award dated 3.3.2004 passed by the Motor Accidents Claims Tribunal, Hamirpur, H. P. in MAC Petition No.43 of 2002, titled as Kunta Devi and others vs. Pawan Kumar and others. On 17.2.2002, an accident took place between two vehicles (Bus No.HP-28-2711 and Scooter No.HP-22-1498). The scooter was being driven by the deceased Amin Chand and the bus owned by the Government was being driven by Shri Kamlesh @ Kamal Singh, respondent No.5 herein. In the said accident, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Shri Amin Chand sustained injuries, was medically treated but however died subsequently. His legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’). Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether Amin Chand, the predecessor-in- interest of the petitioners died in a motor vehicles accident due to the rash and negligent driving on the part of respondent No.2? ……….OPP 2. If issue No.1 is held in the affirmative, to what amount of compensation, the petitioners are entitled and from whom? …..OPP 3. Whether the bus bearing registration No.HP-28- 2711 involved in the accident was not insured with respondent No.3? ….OPR-3 4. Whether respondent No.2 was not having valid and effective driving licence at the time of accident, if so, to what effect? …OPR-3 5. Relief. Appreciating the material on record (oral and documentary), the Tribunal held that Shri Kamlesh had been negligent in driving the vehicle which was the cause of the accident and as a result of the same deceased Amin Chand died. For the purposes of loss of dependency, a total sum of Rs.4,32,000/- (Rs.3000/- X 12 X 12 = Rs.4,32,000/-) was awarded as compensation. In addition thereto, a sum of Rs.45,000/- was awarded towards reimbursement of medical expenses incurred by the claimant; Rs.3000/- for funeral 3 charges; Rs.2000/- as attendant charges during hospitalization of the deceased and Rs.15000/- as consortium charges. Thus, a total sum of Rs.4,97,000/- along with interest at the rate of 9% per annum pendente lite and future was awarded. The vehicle in question was found to have been insured and the driver possessing a valid and effective driving licence, as such, the insurer was held to have been indemnified by the insured and thus, the liability to pay the amount of compensation was fastened upon the insurer, the present appellant . I have heard the learned counsel for the parties and also perused the record. The appeal has been filed only by the insurer. The challenge is only with respect to the liability. The findings of the Tribunal on the issues other than issue No.4 are not subject-matter of challenge in the present appeal. For the purposes of adjudication of the controversy, consideration of the statements of the relevant witnesses i.e. S/Shri Kamal Singh (RW-1) and Parkash Chand (RW-4) is necessary. RW-1 has deposed that he was possessing a driving licence Ext.R1, which was got renewed by him from the licencing authorities at Sarkaghat, Mandi and Ghumarwin and one such application for renewal was exhibited by him as Ext.R2. He admitted that the last such renewal was got done on 2.3.2002 4 from the appropriate authority at Ghumarwin for the period 2.3.2002 to 1.3.2005. RW-4 an official from the office of the Registering Authority, Sarkaghat has deposed that the licence in question was issued by their office for the category L.M.V. and was valid from 10.10.1994 to 17.2.1998 and thereafter, the same was never renewed from their office. His testimony is unimpeachable. Application Ext.R2 is for the renewal w.e.f. 17.2.2001. It shows that the last renewal was got from the Licencing Authority, Sarkaghat. Keeping in view the version of RW-4, the contents of the application are obviously false. Be that as it may be, the fact of the matter is that the licence was issued by the Licencing Authority, Sarkaghat and was valid for the period 10.10.1994 to 17.2.1998. The same was valid for the category L.M.V. The licence Ext.R-1 records that on 17.8.1995, the same was endorsed by the Licencing Authority, Chachyot (Gohar) to drive a heavy goods vehicle and for the period 18.2.1998 to 17.2.2001, the licence was renewed by the Licencing Authority, Sarkaghat. The subsequent endorsement of renewal is for the period 2.3.2002 to 1.2.2005. Even if the version of the driver with regard to the endorsement and the subsequent renewal is taken to be correct, what undisputedly emerges from the record is the fact that between the period 1.8.2001 and 1.3.2002, there was no licence subsisting in his favour. The driver choose not to get the licence renewed between the said period of approximately 12 months 5 and it was only after the accident took place on 17.2.2002, it appears that the renewal was got done w.e.f. 2.3.2002. The Apex Court in Ishwar Chandra and others vs. Oriental Insurance Co. Ltd. & Others {2007(2) ACJ 1067} has held that where an application for renewal of licence was filed after 30 days from the date of expiry, it shall be renewed from the date of the renewal. In that case, as on the date of the accident the licence which had expired on 27.8.1994 was got renewed only after 28.3.1995, the date of the accident, therefore, it was held that it could not be said that the driver had a valid licence on the date of the accident or that the Insurance Company was liable to indemnify the insured. The Court, however, directed the insurer to pay the amount of compensation to the claimants with an option to recover the same from the insured by initiating proceedings before the executing Court. A similar view with regard to the recovery of the amount from the insured was also taken by the Apex Court in Oriental Insurance Co. Ltd. vs. Nanjappan & Others {2004(II) ACJ 721}. Section 15(1) of the Act is clear that “any renewal on the application for renewal of the licence would not relate back from the date of expiry.” As such, in the facts and circumstances of the case, the renewal of the licence on 2.3.2002, i.e. after the expiry of the validity of the licence, would be of no consequence insofar as the instant accident is concerned. Therefore, the insurer could not have indemnified the insured. 6 For the aforesaid reasons findings pertaining to issue No.4, passed by the Tribunal, are set-aside as it has been wrongly held that the driver was possessing a valid and effective driving licence to drive the vehicle at the time of the accident. The terms of the insurance policy thus having been breached, it cannot be said that the insurer is liable to indemnify the insured and pay the compensation to the claimants and it cannot be held that the liability to pay the compensation to the claimants has to be fastened upon the insurer. However, keeping in view the ratio of law laid down by the Apex Court in the aforementioned judgments and in the interest of justice as also the claimants, it is directed that the insurer shall pay the amount of compensation awarded by the Tribunal to the claimants with liberty to recover the same in accordance with law. The appeal is allowed accordingly ( Sanjay Karol ), Judge. December 15, 2008. (rana)