IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 190 of 2006 Reserved on: 16.07.2009 Date of decision: 20.08.2009 Oriental Insurance Company ... Appellant Versus Smt. Kablu & Ors. … Respondents Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. G.C. Gupta, Senior Advocate with Mr. Ashish Jamalta, Advocate. For the respondents: Mr. Vivek Singh, counsel for respondents No. 1 to 5. Ms. Bindiya Sharma, counsel for respondent No. 6. Mr. Rajinder Thakur, vice counsel for respondent No. 7. V.K. Ahuja, J.: This is an appeal filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act against the award of the Motor Accident Claims Tribunal, Chamba, dated 23.3.2006, vide which the claim petition filed by respondents No. 1 to 5 was allowed and they were granted compensation amounting to Rs.2,47,000/-, which was payable by the appellant. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Briefly stated, the facts of the case are that respondents No. 1 to 5 as claimants filed a claim petition as against respondent No. 6, who was impleaded as owner of the vehicle, while respondent No. 7 was impleaded as respondent No. 2 being driver of the vehicle and the appellant was impleaded as respondent No. 3 being the insurer of the vehicle. It was alleged by the claimants that Karam Chand, husband of petitioner No. 1 and father of petitioners No. 2 to 5 was going in vehicle No. HP-44-0751 and he died in an accident that took place due to rash or negligent driving of the driver of the vehicle. The claimants being the dependents of the deceased filed a claim petition claiming compensation to the extent of Rs. Nine Lacs, age was alleged as 45 years and monthly income as Rs.5700/- per month while working as beldar in P.W.D. and as an agriculturist. The vehicle as alleged was a Mini Truck. The respondents denied the allegations. On the pleadings of the parties, issues were settled by the learned Tribunal, who on conclusion of the trial held that the petitioners are entitled to the compensation. It was also held that the Insurance Company has failed to prove that the driver was not holding a valid and effective driving licence. It was also held that the Insurance Company has failed to prove that the vehicle was being plied in contravention of the conditions of the Insurance Policy and that the deceased was traveling as a gratuitous passenger. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were on two grounds, firstly that there was no evidence to prove that the driver was possessing a valid and effective driving 3 licence and secondly, on the ground that the deceased was traveling in the vehicle as an unauthorized passenger or a gratuitous passenger and as such, there was violation of the terms and conditions of the policy and, therefore, the Insurance Company is not liable to pay the amount. To substantiate his submissions, the learned counsel for the appellant had relied upon the following decisions:- The decision in National Insurance Co. Ltd. Vs. Kusum Rai and others, (2006) 4 Supreme Court Cases 250, shows that commercial vehicle was being driven by a person not possessing appropriate licence, therefore, the insurer could rightly set up the defence of breach of condition of insurance contract. However, keeping in view the fact that the deceased was a girl of 12 years and keeping in view the poor background of the claimants, who may not be able to get the money from the owner of the truck, the Hon’ble Apex Court granted liberty to the insurer to recover the amount from the owner of the vehicle in the manner as directed in Nanjappan case, (2004) 13 SCC 224, by filing execution petition and not by filing a regular suit. The decision in National Insurance Co. Ltd. Vs. Prema Devi and others, 2008 ACJ 1149, was relied upon, in which it was observed that claimant was traveling in a goods vehicle as a gratuitous passenger and not as owner of goods or representative of owner of goods being transported in the vehicle. It was held that there was no requirement under law for obtaining a policy covering such passenger. It was held that the Insurance Company was not liable and the claimant may recover the compensation amount from owner of the vehicle. 4 The decision in New India Assurance Co. Ltd. Vs. Prabhu Lal, 2008(1) CCC 16 (SC), was relied upon, in which it was held that the driver was driving a transport vehicle but holding only a LMV licence without an endorsement to drive transport vehicle, the Insurance Company was not liable for paying any compensation. The decision in New India Assurance Company Limited Vs. Roshanben Rahemansha Fakir and another, (2008) 8 Supreme Court Cases 253, shows that the driver was not holding proper licence for the correct kind/class of vehicle which caused the accident. The vehicle was a goods transport vehicle. It was held that the driver was not possessing valid licence to drive a transport vehicle and therefore, the insurer was not liable but was directed to satisfy the award and then to recover the amount from the owner. Coming to the facts of the present case and the first question in regard to the validity of the driving licence, the appellant had taken the plea that the driver was not possessing a valid and effective driving licence. The driver filed a reply as respondent No. 2 denying all the allegations. He did not step into the witness box but the counsel for the driver/respondent No. 2 made a statement in Court tendering copy of the driving licence Ext. R-1 in evidence. The said copy was allowed to be tendered in evidence without any objection from the appellant or by other parties. There is nothing in the statement to show that when the document was exhibited, the original was also brought by the counsel or shown to the Court with the observations seen and returned but the said document was allowed to be exhibited without any objection from either side. This clearly proves that a driving licence was in existence and the particulars were mentioned clearly in Ext. R-1. The initial burden is upon the driver to prove that he was possessing a valid and effective 5 driving licence and once driving licence has been tendered in evidence, it was for the Insurance Company to get the same verified by examining an official from the Licencing Authority if such a licence was issued from their office or not and as to whether the same was valid for driving the Mini Truck or not. However, no steps were taken by the Insurance Company and no evidence was led to prove that the copy of the licence Ext.R-1 was not valid one and it was fake and it was not issued by the Licencing Authority in question. The other manner in which the Insurance Company can prove the validity of the licence is that in case no licence is produced by the driver during the trial of the case, it can issue a notice to the driver to produce the driving licence so that they can get the same verified from the Licencing Authority. In case the identity of the driver was not known or he was proceeded against ex parte, such a notice could have been issued even to the owner to furnish the particulars of the licence so that the Insurance Company could verify its correctness. However, no such steps were taken by the Insurance Company to issue any notice to the driver and once the particulars of the licence were furnished on record and the document was clearly exhibited. In case, the Insurance Company fails to produce the evidence to show that Ext.R-1 was not the correct copy of the licence, they can be held liable to have failed in discharging of their duties. They cannot take a plea that they were not having the particulars of the licence and, therefore, they could get the same verified. From the above discussion, it is clear that the initial burden is upon the driver to produce the licence and once the same has been placed on record, it is for the Insurance Company to prove that it was not valid one in which they had failed and, therefore, they cannot 6 take the plea that there was no valid and effective driving licence in favour of the driver of the vehicle. Therefore, the Insurance Company cannot shift its liability on this ground since onus was upon the Insurance Company to prove that the licence was not valid and effective in which they had failed. Therefore, the findings of the learned Tribunal in this regard are not liable to be set aside. Coming to the second plea that the deceased was a gratuitous passenger, it was alleged that the deceased was traveling in the vehicle, though it was not alleged that in what capacity he was traveling in the vehicle. It was alleged that the deceased was working in H.P.P.W.D. as a beldar and in evidence this plea was taken that the deceased was also engaged by the owner to load and unload the goods in the vehicle. This was sought to be substantiated from the statement of one of the petitioners PW-2 Narayan Singh that his father was working as a beldar and for loading and unloading of goods. He stated that on that day, his father had gone in the vehicle for loading and unloading of the goods. PW-3 Roop Lal, another occupant of the truck, had stated that he was also going for loading and unloading and the deceased was also going with him for that purpose, though he added that he was also going for taking payment. The owner appeared in the witness box as RW-1 and also stated that the deceased had been engaged by him for loading and unloading at the rate of Rs.50/- per day. His statement may be that of interested witness, but cannot be ignored and there is nothing that a P.W.D. labourer cannot do extra work of loading and unloading of the goods being carried in the vehicle. Apart from the above, the Insurance Company has not proved the contents of the Insurance Policy that it does not cover the risk of any passenger or representative of goods in the vehicle. They 7 simply tendered in evidence Ext. R-2, copy of the Insurance Policy, but did not examine any witness from the Insurance Company to prove that the risk of no passenger was covered in this policy or what was the type of the vehicle as to whether it was a goods carriage vehicle or a heavy vehicle or a light vehicle. A perusal of Ext. R-2, shows that it covered the risk for carrying passengers in the vehicle except employees (other than driver) not exceeding six numbers coming under the purview of the W.C. Act, 1923. A bare perusal of this clause shows that risk of six passengers was covered and the Insurance Company took no steps to prove the limitations of use in the vehicle or placed any report of the police or surveyor that the deceased was not a person going in the vehicle for loading and unloading of the goods. My attention has also been drawn to a decision of the learned Single Judge of this Court in FAO No. 307 of 1998, Prem Singh Thakur Vs. Smt. Baldassi and others, decided on 10.12.2008 and a perusal of the same shows that after referring to the decision of the Apex Court in National Insurance Company Ltd. Vs. Annappa Irappa Nesria and others, (2008) 3 SCC 464, it was observed as under:- “The Apex Court therefore held that w.e.f. 28.3.2001 the endorsement to drive a transport vehicle is necessary but prior to that date such endorsement was not necessary since the light motor vehicle in its definition as it existed prior to said date included a light transport vehicle. It is thus obvious that the endorsement is required only after 28.3.2001. Therefore, following the latest decision of the Apex Court in National Insurance Company Ltd. Vs. Annappa Irappa Nesria and others, (2008) 3 SCC 464, it is held that the Insurance Company is liable to indemnify the insured and is therefore liable to pay the amount of 8 compensation since the accident took place much before 28.3.2001. In the present case, the accident had taken place on 5.9.1999 prior to 28.3.2001 and, therefore, no endorsement was required that the driver is entitled to drive a transport vehicle. The light motor vehicle in its definition as it existed prior to this date included a light transport vehicle. The Insurance Company did not lead any evidence to prove that the licence was valid for light motor vehicle or that an endorsement was necessary and they did not produce the R.C. on record or from the Insurance Policy as to the type of the vehicle insured by them. Therefore, the Insurance Company had failed to prove that such a endorsement was required and the Insurance Policy did not cover the risk of passengers traveling in the vehicle beyond six and, therefore, they cannot take up the plea now that the deceased was a gratuitous passenger. The Insurance Company cannot be permitted to take this plea before the executing Court once they had failed to prove these points in the Tribunal since these points were in dispute before the Tribunal and the Insurance Company/appellant also failed to prove both these points and as such, there is no merit in the appeal filed by the appellant and the same is dismissed accordingly. However, the parties are left to bear their own costs. ( V.K. Ahuja ), August 20, 2009 Judge (BSS) 9