IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 361 of 2005 Reserved on: 28.08.2009 Date of decision: 18.09.2009 National Insurance Company Ltd. … Appellant Versus Smt. Munni Devi & Ors. … Respondents Coram : The Hon’ble Mr. V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Ashwani K. Sharma, Advocate. For the respondents: Mr. Rupinder Singh, Advocate, for respondent No. 1. Ms. Ambika Kotwal, Advocate, Court Guardian, for respondent No. 2. Mr. Rajesh Verma vice Mr. Rajinder Dogra, Advocate, for respondents No. 3 and 4. V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act, 1988, against the award dated 4.6.2005 passed by the learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, vide which the petition filed by respondents No. 1 and 2 as against respondents No. 3, 4 and appellant was allowed and a sum of Rs.4,48,000/- was granted as compensation in favour of the claimants. Briefly stated, the facts of the case are that respondents No. 1 and 2 as claimants filed a claim petition against 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 respondent No. 3, who was impleaded as respondent No. 1 before the learned Tribunal being owner of the vehicle, while respondent No. 4 was impleaded as respondent No. 2 being driver of vehicle and appellant was impleaded being insurer as respondent No. 3. The petitioners alleged that deceased Kirpal Singh was working as a labourer and he was with the vehicle truck No. HP-17-3445 for unloading the stones of respondent No. 1. It was alleged that when deceased reached near the truck for unloading, the respondent No. 2 without taking proper precaution, drove the vehicle suddenly and opened the back door (Dalla) and stones fell upon the deceased, who suffered injuries and was crushed and died in this accident. The petitioners being the dependants of deceased being his wife and son, had claimed compensation to the extent of Rupees Seven Lacs. In reply by respondents No. 1 and 2 i.e. the owner and driver, they took up the plea that all of a sudden the ’Dalla’ of the said truck got opened due to break of a bolt of the ’Dalla’ and as such, the deceased suffered injuries. They denied that the accident had taken place due to rash or negligent driving of respondent No. 2. The learned Tribunal tried the petition and on conclusion of the trial held that the petitioners were entitled to a sum of Rs. 4,48,000/- as detailed above and the petition was allowed as against all the respondents. There is no specific order passed by the Tribunal as to whether the amount was payable by the Insurance Company being the insurer or they can recover the amount subsequently from the owner of the vehicle. Hence, the appeal filed by the appellant/Insurance Company. I have heard the learned counsel for the parties and have gone through the record of the case. 3 The submissions made by the learned counsel for the appellant were that the driver of the vehicle, namely, respondent No. 2 was possessing a licence for driving LTV only and since the vehicle in question was HTV, for which the licence was endorsed subsequently, therefore, there was violation of the terms and conditions of the Insurance Policy and as such, the Insurance Company was not liable to pay any compensation. In support, the learned counsel for the appellant had relied upon the following decisions:- The decision in Oriental Insurance Company Limited Vs. Zaharulnisha and others, (2008) 12 Supreme Court Cases 385, was relied upon, wherein it was observed that driving licence is for a particular type of vehicle specified in the licence. Types of vehicles to which licence extends. Held, vehicles of a totally different class from that specified in the licence, not covered. The decision in Smt. Sarswati Devi and others Vs. Smt. Bimla Rani and others, Latest HLJ 2008 (HP) 1187, of learned Single Judge of this Court. was relied upon, in which the driving licence was valid only for the purpose of driving Motorcycle and light Motor Vehicle. It was held to be not valid for driving commercial and/or transport vehicle of any description. The vehicle met with accident was registered as transport vehicle. It was held that the Insurance Company is not liable to pay the compensation. The decision in Oriental Insurance Co. Ltd. Vs. Syed Ibrahim and others, 2007 ACJ 2816, was relied upon. The facts of that case are that the driver was having a licence to drive light motor vehicle, whereas he was driving heavy goods vehicle at the time of accident. The Insurance Company disputed its liability on the ground that the driver did not possess a valid licence. The Tribunal held that 4 the driver had no valid licence and exonerated the Insurance Company. It was held that the Insurance Company may recover the amount paid from the owner by initiating proceedings before the executing Court. On the other hand, the respondents had submitted that the decision in Swaran Singh’s case relied upon by the learned Tribunal applied to the present facts and as such, the Insurance Company was liable. It was also submitted that there was no proof that the vehicle in question was HTV, therefore, the Insurance Company was not exonerated from its liability. A perusal of the award shows that the learned Tribunal had referred to the decision of the Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004(2) S.L.J. 983. In that case it was held that even if the insurer establishes the defence properly, the Tribunal can direct the insurer to satisfy the award in the first instance and to recover the amount from the owner or driver of the vehicle afterwards. It was held that the insurer can recover the amount from the owner or driver in execution of the same award. However, in other circumstances, the insurer can initiate a separate action to recover the amount. It was held that since the driver was holding a learning licence, the Insurance Company was liable to indemnify the insured. The observations were also made that the matter may be different where the insurer can avoid the liability, where the liability can be avoided, if in a given case, the driver of the vehicle may not have any fault at all e.g. a case where an accident takes place owing to a mechanical fault. Coming to the facts of the case, it was clearly alleged by the claimants that the deceased was unloading the stones and the 5 driver drove the vehicle suddenly in a rash or negligent manner and the back door (Dalla) opened and the stones fell upon the deceased. This was also substantiated by the testimony of PW-2 Smt. Munni Devi, widow of the deceased, who was not an eye witness. PW-3 Khem Chand, who was present at the spot, has stated that when they went near the truck to unload the stones, the ‘Dalla’ opened and the stones fell on the deceased. He clearly stated that the ‘Dalla’ opened since the driver suddenly and negligently tried to reverse the vehicle. This clearly shows that the driver was on the steering wheel when the accident in question took place and, therefore, this plea is not open that the vehicle was not being used or the accident had no relation to the driving of the vehicle. A driver of HTV is supposed to know as to how the ‘Dalla’ is opened and in case a person possessing a licence for LMV sits on a HTV he may not be knowing as to how to operate ‘Dalla’ or control and as such, the accident in question can be said to have direct nexus with the licence which the driver was possessing at that time. Moreover, the claim petition under Section 166 of the Motor Vehicles Act only in case the vehicle is used and as such, then only the provisions of Motor Vehicles Act can be said to be applicable. Respondent No. 2 i.e. the driver of the truck has appeared in the witness box as RW-3 and has clearly stated that he was having a learning licence for HTV and, therefore, he would not drive the truck. He stated that the truck was standing and the deceased opened the ’Dalla’ but this is contrary to the version of PW-3, who was an eye witness and has stated that the truck was suddenly started by the driver. He being an interested witness, his statement cannot be relied upon. However, in view of his admission that he was not possessing a driving licence to drive HTV and there is an endorsement in Ext. PW1/A, his licence with 6 effect from 24.7.2003 i.e. after the date of accident, it has to be concluded that he was not possessing any valid licence to drive HTV on the date of the accident. He has never claimed that the vehicle in question was not HTV, as was argued by the learned counsel for the respondents during the course of arguments. In the copy of the Insurance Policy proved in evidence as Ext.R-1, it is mentioned as TATA truck and there are no pleadings of the respondents or any proof that it was not HTV or a truck for which no heavy licence, HTV is required. In view of the admission of respondent No. 2 himself in his statement, it is clear that he was not possessing any valid licence to drive the truck in question. Once it is established that the driver was not possessing a valid licence and the accident had occurred due to use of the vehicle, it has co-relation with the licence which has to be valid. The owner, therefore, cannot escape from his liability in allowing a person not having valid driving llcence to drive the vehicle in question. Therefore, the impugned award passed by the learned Tribunal is liable to be modified to the extent that in the first instance, the amount shall be payable by the Insurance Company and they are at liberty to recover the same from the respondent/owner of the vehicle in execution proceedings. The appeal filed by the appellant is allowed to this extent only and the award passed by the learned Tribunal stands modified accordingly. The parties are left to bear their own costs. ( V.K. Ahuja ), September 18, 2009 Judge (BSS) 7