IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 589 of 2006 Bhuwan Singh … Appellant Vs Harish Chandra Gubbar & another … Respondents Sri I.S. Mehra, learned counsel for the appellant Sri T.A. Khan, learned counsel for the respondent No. 2 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act has been filed by the appellant against the judgment and award dated 06.04.2004 passed by M.A.C.T./District Judge, Nainital in M.A.C. No. 86 of 2001, Harish Chandra Gubbar Vs Bhuwan Singh & others whereby the Tribunal awarded a sum of Rs. 1,32,000/- in favour of the claimant/respondent No. 1. 2. Brief facts of the case are that on 05.01.2001 at about 04:00 p.m., the son of the claimant was coming on his cycle to his house, when he reached at Khera Gangapur Road, opposite side to Gatta Factory, Tractor trolley No. UA06/0363 which was being driven by its driver in a very rash and negligent manner hit the cycle from back side due to which he sustained serious injuries on his head and died at the spot. According to the claim petition, at the time of the accident, he was aged about 19 years and used to earn Rs. 1,000/- per month, therefore, the claimant filed claim petition before the Tribunal for Rs. 2,40,000/- as compensation. 3. The appellant (owner of the tractor) contested the claim petition by filing written statement before the Tribunal concerned stating therein that the said accident took place due to negligence of the deceased. He was falsely implicated in the case. At the time of the accident the vehicle in question 2 was insured with the Oriental Insurance Company Ltd. He has further alleged that there were three other persons who are the owner of the tractor, therefore, the claim petition was liable to be dismissed for non-joinder of the parties. 4. The Oriental Insurance Company Ltd. also contested the claim petition by filing its written statement. It has pleaded in the written statement that the deceased was minor and have no source of income. In the claim petition, the amount of compensation appears to be on the hither side. It has further alleged that at the time of the accident, the driver of the tractor was not having the valid driving licence. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in great detail. 6. The Tribunal, after hearing learned counsel for the parties and perused the evidence led by the parties decreed the claim petition to the tune of Rs. 1,32,000/- in favour of the claimant and against the Insurance Company vide order dated 06.04.2004. The Tribunal has further gave the recoverable right to the Insurance Company from the owner of the vehicle. 7. Feeling aggrieved by the aforesaid judgment and order the appellant/owner of the vehicle in question preferred this appeal before this Court. 8. Heard Sri I.S. Mehra, learned counsel for the appellant, Sri T.A. Khan, learned counsel for the respondent No. 2/Insurance Company and perused the record. 3 9. The Tribunal has discussed issue No. 1 with regard to the rash and negligent driving which was discussed in great detail. Sri Harish Chandra (P.W.1) who is the father of the deceased has stated in his statement that on the date of accident his son was coming from Rudrapur on his cycle, suddenly, Tractor No. UA06/0363 which was being driven by its driver in a very rash and negligent manner hit the deceased from back side due to which he sustained serious injuries on his head and died at the spot. The report of the incident was lodged by the uncle of the deceased. In order to support his case, the claimant filed copy of First Information Report as paper No. 5ga/2 and paper No. 5ga/3 which is postmortem report of the deceased. The Insurance Company has also filed the chargesheet submitted by the police as paper No. 35ga/4. The appellant as well as the Insurance Company did not deny the accident. It was submitted by them that the accident caused due to negligence of the deceased. In order to support his case, the owner of the vehicle in question filed cover note of the policy, which indicate that the vehicle was insured with the Oriental Insurance Company at the time of the accident. The appellant has also filed the registration certificate, which is 5ga/5, which shows that there were three more persons who are the owner of the vehicle in question. The Tribunal after considering the entire evidence available on record came to the conclusion that the accident was caused by Bhuwan Chandra who was driving the said tractor in a very rash and negligent manner. Therefore, the Tribunal decided this issue against the owner as well as Insurance Company. 10. The Tribunal while awarding the claim petition in favour of the claimant, the respondent No. 1 also directed in the impugned award that the Insurance Company may recover 4 the amount of compensation from the owner of the vehicle i.e. appellant. 11. The appellant has thus challenge the impugned judgment and award on the ground that the appellant was having the valid driving licence at the time of the accident and the vehicle was ensured with the Insurance Company, therefore, the liability to pay the amount of compensation rests upon the Insurance company, not with the insurer i.e. appellant. 12. The record reveals that the appellant was having the learning licence, which was effective upto 22.12.2000. The accident in this case had taken place on 05.01.2001. It is thus clear that the learning licence which the appellant was having at the time of the accident had already expired on 22.12.2000 and on the date of accident i.e. 05.01.2001, the appellant did not possess any licence, either learner or permanent with him. It is not the case of the appellant that he had already applied before the expiry of the learner licence for issuing the permanent driving licence in his favour. Had the appellant applied for permanent licence before expiry of the period of learner licence, then during the process of issuing the permanent licence, if the accident had occurred then the matter would have been different? But the appellant never tried to obtain the permanent driving licence before expiry of the learner licence, hence, it can be safely presumed that at the time of the accident i.e. 05.01.2001, the appellant did not possess any driving licence. 13. The record further reveals that the permanent driving licence was issued to the appellant on 22.01.2001 i.e. after 17 days of the accident. Therefore, the appellant cannot 5 get any benefit of the plea that he was having a valid driving licence at the time of the accident. 14. Learned counsel for the appellant – Sri I.S. Mehra has invited my attention towards the provision of Section 14(2)(b)(ii) of the Motor Vehicle Act and he has submitted that the validity of the learning licence was upto 22.01.2001. Hence, at the time of the accident i.e. 05.01.2001, the appellant was having effective driving licence. Therefore, the Insurance Company cannot recover the amount of compensation awarded by way of the impugned award. 15. I have already observed above, the period of learner licence was upto 22.12.2001 and the accident had occurred on 05.01.2001. Had the appellant moved any application for issuing the permanent driving licence in his favour before the expiry of the learner licence, then the matter would have been different. But the appellant could not show by any stretch of evidence that he had applied for obtaining the permanent licence before expiry of the period of learner licence. Therefore, I do not find any other option except to conclude that the appellant was not having any valid driving licence at the time of the accident. 16. My view is fortified from the decisions of the Hon’ble Apex Court in New India Assurance Company Ltd. Vs Mandar Madhav Tambe & others reported in (1996) 2 Supreme Court Cases 328 and in Oriental Insurance Company Ltd. Vs Felix Correa & others reported in (2003) 10 Supreme Court Cases 289. 17. It is true that the learning licence is also included in the definition of the valid driving licence, but the 6 circumstances in this case are different as in the instant case, the appellant was not having any licence either learning or permanent licence on the date of the accident. 18. Under the aforesaid circumstances, the Tribunal has rightly directed the Oriental Insurance Company to recover the amount of compensation awarded in favour of the claimant from the owner of the vehicle. 19. In view of the above discussion, the appeal is dismissed. No order as to costs. (B.C. Kandpal, J.) 03.04.2008 ASWAL