IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CR NO.4355/2007. Date of Decision: 16.4.2009. Bharat Kharbanda ..........Petitioner. Versus New India Assurance Company Limited and others. ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr. J.C.Verma,Senior Advocate with Ms. Meenakshi Verma,Advocate for the petitioner. Mr. Pardeep Goyal,Advocate for respondent no.1-Insurance Co. JASWANT SINGH,J In claim petition no.96 under Section 166 of the Motor Vehicles Act,1988 (for short the Act), which was decided by learned Motor Accident Claims Tribunal, Faridabad (for short the learned Tribunal) vide award dated 18.8.2005, petitioner was respondent no.2, being the owner of the offending truck. That claim petition was filed by one Smt. Bimli and her three minor CR NO.4355/2007 -2- daughters and two minors sons, being the widow and children of deceased Rajman Ram, who died on 26.7.2002 in a motor vehicular accident involving the truck bearing registration no. HRU-8149 owned by the petitioner herein. On the basis of evidence led by the parties that claim petition was allowed and compensation of Rs.3,72,620/- was awarded to the claimants- respondents 3 to 8. Respondent no.2-Raish Ali, who was driving the offending truck at the time of accident did not appear in the witness box. His driving licence was, however, produced on record as Exhibit R-1. It was found by the learned Tribunal that the said licence was meant for driving LMV (Light Motor Vehicle), whereas registration certificate Exhibit R-2 of the offending truck (HRU-8149) revealed that it was a Heavy Transport Vehicle(HTV). Thus, it was found that Raish Ali-respondent no.2-driver while holding a LMV driving licence was driving HTV and as such there was a clear cut breach of terms and conditions of insurance policy. Accordingly, Insurance Company was directed to pay the compensation at the first instance and thereafter to recover the same from the insured i.e. petitioner- Bharat Kharbanda, being the registered owner of the offending truck. As already stated above, the said award was passed by the learned Tribunal on 18.8.2005. Armed with the recovery rights, the Insurance Company after making payment of compensation to the claimants/dependants of the deceased, filed an Execution Application against the petitioner-owner and respondent driver of the offending truck, before the learned Tribunal. In that Execution Application, the petitioner-owner and respondent no.1-Raish Ali-driver moved a joint application for review of the award, primarily on the grounds that (i) the driver was holding a valid and effective driving licence to drive Heavy Transport Vehicle, but due to the lapse on the part of the counsel for CR NO.4355/2007 -3- the petitioner-owner and respondent no.1-driver of the offending vehicle, the same was not produced before the learned Tribunal; (ii) their counsel was so irresponsible that he even did not inform them about the proceedings and even closed their evidence without their statement in the Court; and (iii) further played a fraud upon them by not informing about the actual position. It was stated that petitioner came to know about the factual position only after the receipt of summons in the execution proceedings. After hearing the learned counsel for the parties, learned Tribunal dismissed the said review application vide impugned order dated 8.8.2007 (Annexure P/3). It is this order dated 8.8.2007 (Annexure P/3) which is under challenge in the present revision petition. After hearing the learned counsel for the parties and perusing the record, I do not find any merit in this revision petition and the same is liable to be dismissed. The award in the claim petition, as noticed above, was passed on 18.8.2005 in claim petition No.96 dated 17.9.2002. The Insurance Company filed execution application on 18.1.2007. Petitioner woke up from his slumber only on the receipt of notice in the said execution application. Till that time, the petitioner did not bother to contact his counsel so as to know the fate of the claim petition, as a result of which the award had attained finality. Mr. J.C.Verma, learned Senior Counsel assisted by Ms.Meenakshi Verma, learned counsel for the petitioner submits that learned Tribunal fell in error in holding that it had no power to review its own orders. Reliance has been placed upon United India Insurance Co.Ltd. v. Rajendra Singh and others, (2000)3 SCC 581 and Rajan v. Sukumaran, 1997 CR NO.4355/2007 -4- ACJ 278 (Kerala) to contend that the Motor Accident Claims Tribunal has inherent power of review to undo the award obtained by fraud or misrepresentation. There is no quarrel with the proposition that fraud vitiates all proceedings, However, I am of the considered opinion, that the case law cited by the learned Senior Counsel is not applicable to the facts of the present case. Before the learned Tribunal, the plea taken by the petitioner-owner and driver in their joint application for review, as culled out from the impugned order dated 8.8.2007 (Annexure P/3) was that:- “professional drivers usually keep a second driving licence just to hand over the same to the local police. It was that kind of driving licence which had been got verified in the case. As a matter of fact the driver of offending truck had a valid and effective driving licence. Due to mistake on the part of their counsel, the valid and effective driving licence could not be placed on Court file.” On the other hand, in para 10 (vi) of the present petition, supported by an affidavit, the stand taken by the petitioner-owner, relevant extract of which reads as under, is that:- “Immediately after the accident the driver-respondent disappeared and had no contact with the petitioner. It seems that he had contacted the Advocate of his own on receiving the summons. The counsel of the driver for the reasons best known to him did not produce the licence though it was available either with the driver or the counsel. After the judgement when the petitioner was able to contact the driver, he was told that he had given the licence to the counsel but still CR NO.4355/2007 -5- for the reasons best known to the counsel he had summoned the police record which contained only light vehicle licence.” In the written statement, it was not the case of the petitioner-owner or the driver that the latter had two driving licences-one issued on 5.8.1998 by Licensing Authority, Kanpur for driving Light Motor Vehicle (non-transport); and the other which is now sought to be produced (on the ground that the same was given to their counsel in the Tribunal, but he did not produce the same) issued by Licensing Authority, Agra on 13.4.1999 authorising the driver-Raish Ali to drive Heavy Transport Vehicles (HTV) w.e.f. 8.6.2000. Thus, it is apparent that the plea taken by the petitioner-owner that the second driving licence authorising the driver to drive Heavy Transport Vehicle (HTV) was not produced by their Counsel is an afterthought. Still further, the two versions given by the petitioner-first before the learned Tribunal and the other before this Court, both reproduced above- for non-production of the driving licence are inconsistent and thus not acceptable. A perusal of the award shows that one Sh. C.P.Gaur, Advocate had represented the petitioner as well as the driver before the learned Tribunal which passed the award. It does not appeal to reason that a counsel would play fraud to such an extent, especially when he was not going to be benefited by that act at all. Rather his own professional career would undoubtedly have been put at stake. In an unlikely event, if petitioner's counsel had conducted himself in such a fashion, the petitioner must have availed all legal remedies at his command to get that injustice undone including a complaint to the concerned Bar Association. As noticed earlier, nothing of the sort has been done. In United India Insurance Co.'s case supra, the claimants had succeeded in getting fake claim, which fact came to notice of the Insurance CR NO.4355/2007 -6- Company later on and as such it pursued the matter upto the Hon'ble Supreme Court to get the said award undone. In these circumstances, the Hon'ble Apex Court set aside the award and directed the Tribunal to consider the claims put forth by the claimants afresh after affording a reasonable opportunity to the appellant Insurance Company to substantiate their allegations. Facts of the case in hand are totally different. It is not the case of the petitioner that claimants had put up a false claim or the petitioner-owner and driver had not been given full opportunity to defend their case. It is the case of the petitioner-owner that the driver was holding both LMV and HTV licence, which were handed over to the police and it was counsel for the petitioner who did not produce the HTV licence and instead proved LMV licence due to which liability to pay the compensation has been fastened upon the petitioner being the registered owner of the offending truck. Learned counsel for the petitioner-owner has not been able to point out any legal provision under which the driver could hold two different licenses, so as to produce them according to his sweet will. Sub-section(1) of Section 6 of the Motor Vehicles Act,1988 (hereinafter referred to as the Act) strictly prohibits holding of two licences. The case of the driver-Raish Ali is not covered under any of the exceptions to this Section. Second proviso to Section 9 of the Act further prohibits Licensing Authority from issuing a new driving licence to an applicant, if he previously held a driving licence, unless for good and sufficient reasons he can show his inability to obtain a duplicate copy of his former driving licence. Section 11 of the Act covers the situation where a person seeks to upgrade his driving licence from one category to the other category. Rule 17 of the CR NO.4355/2007 -7- Central Motor Vehicles rules,1989 provides the requisite format in which the upgradation can be done. Therefore, in the light of the aforesaid provision of the Act read with Rules, which provide that only one driving licence can be possessed by a driver and the manner in which the licence has to be upgraded from a light motor vehicle to heavy transport vehicle, the contention being raised by the petitioners is wholly untenable. The second case law in Rajan's case supra is also not applicable to the facts of the present case. In that case the insurance company had not produced the insurance policy alongwith written statement or before the award was passed by the Tribunal, allowing a compensation of Rs.81,800/-. Thereafter, the insurance company filed an I.A. No.592 of 1987 before the Tribunal seeking review of the award dated 24.7.1987, limiting their liability to the statutory limit of Rs.50,000/-, as provided under Section 95(2)(b) (i) of the Act. That I.A. was allowed by the learned Tribunal and was challenged by the claimant before the High Court of Kerala (at Ernakulam). A Division Bench of the Hon'ble Kerala High Court upheld the action of the Tribunal in reviewing the award holding that “the insurance company which is an instrumentality of the Government dealing with public money should not be held liable to bear unnecessary burden by shelling out huge public funds due to the laches or inadvertence on the part of its officers charged with the conduct of the cases before the Tribunal or other fora......” This Court is unable to believe the story put forth by the petitioner that he blindly believed his counsel, who allegedly ultimately ditched him and did not produce the HTV licence held by the driver. The entire attempt is nothing but to make the Court believe the petitioner, whose own conduct does not appear to be above board. CR NO.4355/2007 -8- No other point has been raised. For the reasons stated above,finding no merit in this revision petition the same is hereby dismissed with costs, which are quantified at Rs.5,000/-, to be payable to Haryana State Legal Services Authority, Chandigarh. 16.4.2009. (Jaswant Singh) joshi Judge