FAO No. 2731 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2731 of of 2009(O&M) Date of decision 19.9.2011 1. FAO No. 2731 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 2.FAO No. 2732 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 3.FAO No. 2733 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 4.FAO No. 2734 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 5. FAO No. 2735 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 6.FAO No. 2736 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 7.FAO No. 2737 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents FAO No. 2731 of 2009 2 8.FAO No. 2738 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 9.FAO No. 2739 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 10. FAO No. 2740 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 11.FAO No. 2754 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 12. FAO No. 2755 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 13. FAO No. 2756 of 2009 Varinder Kumar Appellant v. Vijay Kumar and Others Respondents 14. FAO No. 2673 of 2009 Varinder Kumar Appellant v. Darbara Singh and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Ashit Malik,Advocate and Mr. Ajit Attri, Advocate for the appellant Mr.Kamal Kant Verma, Advocate for Mr. R.K.Bishamboo, Advocate Mr. Vinod Gupta, Advocate Mr. L.M.Suri, Sr.Advocate with Mr. Neeraj Khanna,Advocate FAO No. 2731 of 2009 3 JITENDRA CHAUHAN.J C.M.No. 13531- CII of 2009 Learned counsel for the appellant states that though there is no cogent ground in the appeal for avoiding the application for condonation of delay of 91 days in filing the appeal, and the same could not be filed within limitation as the appellant did not have the requisite statutory amount. The Learned Sr. counsel for the Insurance Company has submitted that limitation starts on 31.10.2008 and the appeal could have been filed on or before 31.1.2009. He further contends that the appellant does not disclose any ground in the appeal for condonation of delay in filing the appeal and that the delay in filing the appeal is both intentional and not bona fide, and therefore, deserves to be dismissed. Admittedly, there is no averment regarding the deposit of statutory amount within limitation for filing this appeal and the same cannot be taken as a conspiral truth. Subsequently, the statutory amount stands deposited on 19.5.2010 on liberty given by this Court for filing the appeal. Delay of 91 days in filing the appeal is condoned. C.M. No. 13531-CII of 2009 is allowed . Main appeal No. 2731 of 2009 These appeals have been filed by the appellant- owner against the common Award ( in all the above titled FAOs) dated 31.10.2008, passed by the Motor Accident Claims Tribunal, Ludhiana (for short the Tribunal). FAO No. 2731 of 2009 4 For the sake of convenience, facts are taken from FAO No. 2731 of 2009 as the question of law arising in all these appeal is common. The claimants i.e Smt.Surinder Kaur and Kulwant Singh (MACT No.175 of 16.9.2005) filed claim petition under section 163-A of the Motor Vehicles Act, 1988 ( hereinafter referred to as the Act) for compensation on account of death of their son Balwinder Singh in a motor vehicular accident on 3.7.2005. On that day, Balwinder Singh along with Smt.Paramjit Kaur, Sukhwinder Kaur, Baljit Singh, Balwinder Singh, Charanjit Kaur wife of Gurmail Singh, Charanjit Kaur wife of Darbara Singh, Amandeep Singh, Gurleen Kaur, Bhinder Singh, Prabhjot Kaur, Rajwinder Kaur, Jarnail Kaur, Gagandeep Kaur, Gurmeet Singh @ Kala, Manjot Singh, Amandeep, Mandeep Kaur and Yuvraj Singh were going from village Mukandpur to Gurudwara Harmandir Sahib, Amritsar in Mahindra Trax No. PB-10BX 3324. The said vehicle was driven by Sukhwinder Singh. Jang Bahadur, Gurmail Singh and Manjit Singh, the occupants of Indica Car were following the Mahindra Trax. At about 4 a.m when the vehicles reached near Truck Union Goraya, a truck bearing registration No. PB-10D-9811 ( offending truck) loaded with heavy iron bundles was standing in the middle of the road, without any indicator lights. The Mahaindra Trax struck against the rear portion of the said truck as a result of which all the occupants of Mahindra Trax sustained injuries. 15 persons including Balwinder Singh died at the spot. Injured Gurmeet Singh, Majot Singh, Amandeep, Mandeep Kaur FAO No. 2731 of 2009 5 and Yuvraj Singh were taken to Civil Hospital, Goraya. FIR No. 74 dated 3.7.2005 was registered. The case of the claimants is that at the time of accident, deceased Balwinder Singh, was 24 years old and was earning Rs. 3300/- per month by running a tea stall. They were dependent on the income of the deceased. Upon notice, respondent Nos. 1 and 2, driver and owner of the offending truck respectively filed written statements. As per respondent No.1, he parked the truck on the jack on kacha portion of the road on his left side and the parking lights of the truck were on. Sukhwinder Singh while driving the jeep in a rash and negligent manner, lost control and struck against the standing truck. Respondent No.2 also took the same stand. The respondents No. 1 & 2 pleaded that they are not liable to pay any compensation, as at the time of accident, truck was insured with the National Insurance Company Limited and Vijay Kumar, driver (respondent No. 1 ) was holding an effective and valid driving licence to drive the said truck. Respondent No.3, National Insurance Company Limited took an objection that respondent No.1 was not holding valid and effective driving licence. The accident, alleged in the manner has not occurred and the offending truck was not involved in the accident. However, it was admitted that the truck was insured with the Insurance Company. Respondents No. 4 & 5 filed separate written statements and pleaded that accident took place due to the negligence of the driver of the truck. Balwinder Singh, deceased FAO No. 2731 of 2009 6 was traveling in the Mahindra Trax No. PB-10B-3324 owned by deceased Sukhwinder Singh. Respondent No.6, Oriental Insurance Company filed its written statement and took an objection that the Mahindra Trax got insured as a 'goods carriage vehicle', whereas it was being used for carrying the passengers, which is in violation of the terms and conditions of the policy. It was further pleaded that deceased Sukhwinder Singh, did not possess an effective and valid driving licence. From the pleadings of the parties, the following issues were framed on 25.11.2005 and 22.9.2006:- 1. Whether Balwinder Singh died in road side accident involving truck No. PB-10B-9811 drive by respondent No. 1 on 3.7.2005 ? OPP 2. Whether the claimants are legal heirs of the deceased? OPP 3. Whether the claimants are entitled to claim compensation. If so to what extent and from whom? OPP 4. Whether respondent No.1 was not having a valid and effective driving licence at the time of accident? OPR-3 4.A.Whether there is breach of policy qua respondent No.6 as alleged in the written statement? OPR6 4.B Whether respondent NO. 6 is not liable to pay FAO No. 2731 of 2009 7 compensation? OPR-6 5. Relief”. The Tribunal after considering the evidence produced on record and examining the witnesses, qua Issue No.1 came to the conclusion that deceased Balwinder Singh died in road side accident involving truck No. PB-10D-9811 which was parked by respondent No.1 at the middle of the road without any indicator. The issue was accordingly decided in favour of the claimants. Issue No.2 was also decided in favour of claimants being the legal heirs of deceased Balwinder Singh. While deciding Issue No.4, the Ld. Tribunal discussed the entire evidence on record and observed that the original licence No. 7477/R/96-97/HSR is not in the name of Vijay Kumar though the licence was twice renewed in the name of Vijay Kumar. The original licence was issued to one Surinder Pal and there is no evidence on record that Vijay Kumar had applied for driving licence in the office of DTO Hoshiarpur. Rather the application and receipts were in the name of Surinder Pal. Thus the Ld. Tribunal in para 12 of the award concluded as under:- “ In the instant case original licence of Vijay Kumar is fake and only renewal is in the name of Vijay Kumar. Hence this Court is constrained to record the findings of this issue in favour of respondent No.3.” While deciding issue Nos. 3, 4A and 4-B, the Ld. FAO No. 2731 of 2009 8 Tribunal observed as under:- “13.All these appeals are interconnected and as such taken up together. Ld. Counsel for the claimant has contended that since the deceased has died due to road side accident involving truck No. PB-10D-9811 hence the claimants are entitled to compensation to be awarded and all the respondents are liable to pay the compensation. On the contrary it is contended by Ld. Counsel for respondent No.3 that insurer is not liable to make the payment of compensation as the licence of Vijay Kumar is fake, whereas the counsel for respondents No.1 and 2 contended that licence is valid and there is no fault on behalf of the owner as he has fully verified the genuineness of the driving licence from the office of DTO. Counsel for respondents No. 4 & 5 contended that the deceased died due to road accident involving truck bearing No. PB-10D-9811. Since petition has been filed u/s 163 A of the Act and it has been held that accident took place involving truck No. PB-10D-9811 hence vehicle bearing No. PB-10D-9811 is offending vehicle and respondents No. 1 to 3 are liable to make payment of compensation to FAO No. 2731 of 2009 9 be warded by this Court and there is no liability of respondents No. 4,5 & 6. 14. It has also been held while deciding issue No. 3 that driver of offending vehicle bearing registration No. PB -10D-9811 namely Vijay Kumar is not holding a valid driving licence as the original licence was fake but it has been held by Hon'ble Apex Court in 2008(1) ACJ 605 that in case of third party risk the insurer has to idemnify the amount and if so advised, to recover the same from the insured. Keeping in view the law laid down by Hon'ble Apex Court the insurer of vehicle No. PB-10D-9811 is liable to make payment to the third party on account of compensation to be awarded by this Tribunal on account of death of Balwinder Singh in road side accident. Since the licence was fake so the Insurance company has got right to recover the same from insured.” 15. Ld. Counsel for the claimant has contended that the deceased in this case is Balwinder Singh son of claimant No. 1 & 2 and as per the version of the claimants the income of the deceased stated to be Rs. 3000/- and they claimed compensation of Rs. 6 lacs. FAO No. 2731 of 2009 10 Counsel for the Insurance Company argued that the claimants have also been awarded ex gratia to the tune of Rs. One lac. Though it has been admitted during the course of arguments that they have been given ex-gratia to the tune of Rs. One lac but i.e no ground to refuse compensation since it is separate liability. To prove the income there is statement of Surinder Kaur PW1 that the deceased was running tea and was earning about Rs. 3300/- per month. Though they have stated that he is earning hand and earned Rs. 3300/- per month but there is no documentary proof of his income. Even in these days a labourer can earn Rs. 2000/2500/- per month so the income of deceased is taken as Rs. 2100/- per month. So the dependency of the complainants comes to Rs.1400/- per month. The age of the deceased was 24 years as stated by the claimants so the multiplier of 17 is applicable. In this way the claimants No. 1 & 2 are held entitled compensation to the tune of Rs. 2,85,600/- ( 1400x12x17) to be paid by respondents No. 1 to 3 jointly as well as severally. In case respondent No.3 Insurance company makes the payment of award amount it shall have the right to recover the same from the insured. These issues are decided accordingly.” Aggrieved against the findings of the Ld. Tribunal, Varinder Kumar, owner of offending truck preferred these appeals. FAO No. 2731 of 2009 11 Learned counsel for the appellant submitted that the Ld. Tribunal has misread and mis-interpreted the provisions of law and erroneously recorded the findings that the Insurance company is entitled to recover the amount from the respondents- appellants. He further submitted that the Ld. Tribunal has wrongly concluded that the driving licence of Vijay Kumar is fake and the said licence was in the name of Surinder Pal. Elaborating his argument, he submitted that the licence of Vijay Kumar was renewed twice by the DTO Hoshiarpur. He stated the Ld. Tribunal has wrongly absolved of the liability of driver, owner and Insurance Company of Mahindra Trax PB-10BK- 3324. They should also be held liable to pay the compensation to the claimants along with the appellants, as the driver of the Mahindra Trax was also responsible for the accident. On the other hand, learned counsel for the Insurance Company contended that the licence possessed by the driver- Vijay Kumar was forged one on the face of it, as in the record of DTO, Hoshiparpur, it was issued in the name of Surinder Pal. He further contended that once the original licence is found to be fake one, the renewal thereof cannot take away the effect of fake licence. He submitted that the Ld. Tribunal has rightly passed the Award after appreciating the entire evidence and case law on record. I have heard the learned counsel for the parties and perused the record with their able assistance. The common point for determination arises before FAO No. 2731 of 2009 12 this Court, in all the appeals, is “where the licence is originally found to be fake one, can its renewal cure the inherent fatality? A perusal of the record shows that the Ld. Tribunal discussed the entire evidence and case law on record, while deciding Issue No.4 and observed as under- “12. Learned counsel for respondent No.3 National Insurance Company contended that respondent No.3 insurer of truck bearing No. PB-10D-9811 is not at all entitled to pay compensation to the claimants as the driver of the truck was not holding a valid driving licence and the owner has not verified its driving licence hence the findings of this issue be returned in favour of respondent No.3. On the contrary, it has been contended by counsel for respondents No. 1 & 2 that the truck bearing registration No. PB-10D-9811 is duly insured with respondent No.3 and the owner of the truck has duly verified from the office of DTO Hoshiarpur with regard to validity of the driving licence of Vijay Kumar, respondent No.1 and also took a test of driving of the driver through driving test and licence of the driver namely Vijay Kmar was duly renewed and the defence is not available to the Insurance that since licence is not valid they are not liable to pay compensation to the claimants and relied upon National Insurance Co.Ltd v. Swaran Singh and FAO No. 2731 of 2009 13 Others 2004 ACJ 1. He also relied upon 2008 ACJ 1935 Zila Singh v. Mukes Kumar and Others. Motor Vehicle Act,1988 Section 149(2) (a) (ii) Motor Insurance, Driving Licence, Fake Licence, Liability of Insurance company. Contention that driver of the offending vehicle was appointed after checking his driving licence. Tribunal found that licence of the driver was fake and forged and exonerated the insurance company. Whether Insurance company is liable held yes. He also relied upon 2007 ACC 510 Narinder Singh v. Oriental Insurance Co.Ltd. & Ors. Motor Vehicle Act 1988 Section 149 (2) Driving Licence fake. Subsequently been renewed number of times. Liability of insurer, owner, before employing driver saw his driving licence and also took driving test. Fact of issuance of licence got verified from concerned Licencing authority. Evidence that owner employer did all what was within his power to find out validity of licence. Owner not guilty of negligence or failure to exercise reasonable care while employing driver. Driver owner and insurer jointly and severally liable to pay compensation to claimants. He also relied upon 2007 ACC 448 National Insurance Co.Ltd. v. Ajmer Singh and Ors. Motor Vehicles Act 1988. Section 149(2) Driving Licence, validity, liability of insurer. FAO No. 2731 of 2009 14 Pleas of insurer, licence fake cannot be accepted. Licence was valid renewed. Question of original driving licence being fake becomes irrelevant. Insurer liable. He also relied upon 2006 ACJ 2535 New India Assurance Co. Lte. vs. Gurvinder Kaur and others. Motor Vehicles Act, 1988. Section 149 (2) (a) (ii) Motor Insurance. Driving Licence. Fake Licence. Liability of Insurance company. Evidence that driving licence was not issued by the licensing Authority in the name of the driver. Driving Licence did bear the stamp of Licensing Authority. No way for the owner to find out whether the licence is genuine or not. Insurance company failed to lead evidence to prove that insured was negligent and failed to exercise reasonable care regarding use of vehicle by a duly licensed driver. Whether the insurance company is liable. Held. Yes. He further contended that once a licence has been renewed by the competent authority, it is deemed to be valid licence and the licene of Vijay Kumar was renewed after due verification. As stated by RW1 Amarjit Kaur clerk DTO Office, Hoshiarpur in her cross examination that it is correct that the entries in the register are not made by her nor the same were made in her presence. It is also correct that the photograph of the licence holder is not affixed on FAO No. 2731 of 2009 15 the pages which were later on added in the register. She did not know if any DDR/FIR was lodged regarding destroy of record. She further admitted if the original licence is made from the outstation then a confirmation is obtained from that office before renewal. It is correct that that if the licence pertains to the same office, the same is renewed after thorough verification It is correct that no licence is renewed without checking the previous record. Hence licence of Vijay Kumar is certainly valid. Ld. Counsel for respondent No.3 has contended that fake driving licence renewal cannot transform it as genuine and relied upon 2008(1) ACJ 605 (S.C.) M/s United India Insurance Co. Ltd. V. Davinder Singh. He also relied upon 2001( ACJ 843 New India Assurance Company Ltd. v. Kamla and Others. Motor Vehicles Act, 1988 Section 149(2) (a) and 149 (4) Motor Insurance Policy. Breach of third party risk. Liability of insurance company. Whether the insurance company is liable to pay to the third parties irrespective of the fact that there has been any breach or violation of the policy conditions. Held. Yes, but the insurance company can recover from the insured the amount so paid to the third parties, if as per the policy conditions, the insurer had no liability to pay such sum. Amarjit FAO No. 2731 of 2009 16 Kaur, clerk DTO Office Hoshiarpur has been examined as RW1 and she has stated that she had brought summoned record pertaining to issuance of driving licence No. 7477 dated 10.2.1997 along with application and deposit receipt and record pertaining to renewal of licence No. 1091 dated 25.6.2002 and further renewal of the driving licence No. 4364 dated 20.7.2005 to 19.7.2008 on the basis of old No. 1091/R/2002-2003 and photostat copy of the register is Ex. R1. The register brought by her starts from serial No. 3505 to 9162. She also brought register pertaining to renewal of licence starting from 3801 to 4215 and then from serial No. 1 to 1318. The said register contains an entry pertaining to renewal of licence No. 1091 in favour of Vijay Kumar son of Budai Ram valid from 25.6.2002 to 24.6.2005 for scooter, LTV and HTV. Said licence is renewed on the basis of old No. 7477/R/96- 97/HSR and the copy of register is Ex.R2. She also brought the application and deposit receipt with her. That application is moved by Surinder Pal son of Brij Lal resident of Hoshiarpur. The said application was allotted licence No. 7477 dated 10.2.1997 by DTO Hoshiarpur on the application moved by Surinder Pal. The application is Ex. R3 and receipt of deposit is Ex.R4 and endorsement on FAO No. 2731 of 2009 17 the application is Ex.R5. On the basis of application moved by Surinder Pal, same was entered in the driving licence register maintained by the office. Copy of the same is Ex.5A. As per register Ex. 5A, licence NO. 7477 is issued to Surinder Pal son of Brij Lal valid w.e.f. 18.2.1997 to 9.2.2000 for HMV only. Said register starts from serial No. 6739 to 8523. As per record brought by her, no licence has been issued in favour of Vijay Kumar son of Budai Ram. Some pages of the register starting from serial NO. 6739 to 8523 were missing. They have taken out the applications of those misplaced pages and then had made necessary entries in their register pertaining to those licences. Ex. R6 has been issued by their office. She had seen report Ex. R7 which is in her handwriting and is correct. Though there is statement of RW3 Varinder Kumar that he is owner of truck bearing registration No. PB-10D-9811 and employed Vijay Kumar as driver after taking a test of driving and possessed a driving licence which was issued by DTO Hoshiarpur. He also visited the office of DTO Hoshiarpur and inquired about the genuineness of the driving licence of Vijay Kumar and after satisfying himself he employed Vijay Kumar as driver on the truck. The arguments and law referred to by Ld. Counsel for respondents No. FAO No. 2731 of 2009 18 1 and 2 is not at all relevant to the facts of the present case. There is only bare statement of owner of the truck that he got the driving licence verified from the office of DTO, Hoshiarpur. There is no document to show that he moved application for verification of driving licence before DTO Hoshiarpur. More over there is specific statement of the clerk of DTO Hoshiarpur that though licence was renewed twice in the name of Vijay Kumar but original licence No. 7477/R/96-97/HRS is not entered in the name of Vijay Kumar. There can be wrong entry in the register but the clerk has also produced the application submitted by applicant as well as receipt which shows that application is in the name of Surinder Pal and no application has ever been filed by Vijay Kumar. So original licence No 7477 was allotted to Surinder Pal. It has been held in 2008 (1) ACJ 685 (supra) in case of third party risk the insurer has to indemnify the amount and if so advised to recover the same from the insured so the case law referred by ld. Counsel for respondents No. 1 & 2 are not relevant to the facts of present case. In the instant case original licence of Vijay Kumar is fake and only renewal is in the name of Vijay Kumar. Hence this court is constrained to record the findings of this issue in favour of respondent No.3.” FAO No. 2731 of 2009 19 A perusal of the findings returned by the Ld. Tribunal, it is crystal clear that the original licence No. 7477/R/96-97/HSR was issued by