FAO No.5587 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5587 of 2009 Date of Decision: 22.03.2010 BSC C & CJV Company ..Appellant Vs. Seema Rahelu & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Ms.Anju Arora, Advocate, for the appellant. Mr.Sanjay Gupta, Advocate, for respondents No.1 to 4. Mr.Neeraj Khanna, Advocate, for respondent No.5. Mr.Rahul Garg, Advocate, for Mr.Ashwani Talwar,Advocate, for respondent No.6. Mr.V.Ramswaroop, Advocate, for respondent No.7. --- Vinod K.Sharma,J. (Oral) This judgment shall dispose of FAO Nos.5587, 5588, 1706 and 1779 of 2009, titled BSC C & CJV Company Vs. Seema Rahelu & Ors.; BSC C & C JV Company Ltd. Vs. Tripta Devi & Ors.; United India FAO No.5587 of 2009 2 Insurance Company Ltd. Vs. Seema Rahelu and Ors. and United India Insurance Company Ltd. Vs. Tripta Devi and Ors., as they arise out of common award passed by the learned Motor Accident Claims Tribunal, Nawanshahr and common questions of law and facts are involved in these appeals. Two of the appeals have been filed by the owner of the offending vehicle against the impugned part of the award vide which right of recovery was given to the Insurance Company, whereas other two appeals have been filed by the Insurance Company against the impugned part of the award vide which Insurance Company was directed to first make the payment to the claimants and thereafter recover it back from the driver and owner of the vehicle. Respondent/ claimants filed a claim petition under section 166 of the Motor Vehicles Act (for short the Act) seeking compensation on account of the death of Lehmber Singh and Sukhwinder Kaur. Learned Tribunal on the basis of evidence recorded a finding that respondent No.1 while driving the Trolla bearing Registration No.PB- 32-C-6121 on 29.3.2004 at 8.30 PM in the area of Bahar Mazra, in a rash and negligent manner caused death of Lehmber Singh and Sukhwinder Kaur. Claimant/respondents were held entitled to compensation on account of death of deceased in a motor vehicular accident. On the pleadings of the Insurance Company, learned Tribunal framed the following issues:- 3. Whether respondent No.1 was not holding a valid and legal driving licence at the time of alleged accident? OPR FAO No.5587 of 2009 3 4. Whether Trolla No.PB132-C-6121 was not holding a valid route permit and fitness certificate? OPR On issue No.3, learned Tribunal held that respondent No.1 was not holding a valid driving licence at the time of accident. For coming to this conclusion learned Tribunal placed reliance on the driving licence Ex.R.2 which showed that the licence was issued on 26.10.1999 for LMV transport only, which was thereafter renewed from time to time and was valid up to 24.10.2004. Therefore, on the date of accident, respondent No.1 had a valid driving licence. Learned Tribunal also held that endorsement for HTV was also made on the licence on the licence on 7.6.1999. However, in the subsequent renewal, endorsement qua HMV was not carried forward. The learned Tribunal, therefore, in view of the omission of the endorsement and statement of Rakesh Sharma, Licence Clerk came to the conclusion that the driver was not holding a valid riving licence. It was held that the owner of trolla was holding a valid route permit and fitness certificate. Issue No.4, was decided in favour of the owner and against the Insurance Company. Ms.Anju Arora, learned counsel appearing on behalf of the appellant challenged the findings on issue No.3, primarily on the ground that the Learned Tribunal has given too much importance to the fact that the Licencing Authority while renewing the licence did not carry forward the endorsement of HTV which was duly made on 7.6.1999. The contention of the learned counsel for the appellant was that it was due to the fact that the endorsement was made subsequently, that the FAO No.5587 of 2009 4 Licencing Authority missed this fact. The contention of the learned counsel was that the Insurance Company could not deny the liability to indemnify the insured on this technical plea as it failed to prove that while the application for renewal was made, any request was made for deleting the endorsement of HTV from the driving licence. The contention of the learned counsel for the appellant was that even by evidence led it could not be said that the driver was disqualified for holding or obtaining a driving licence. Therefore, in view of Section 149 of the Motor Vehicles Act, it could not be said that the driver was not holding a valid driving licnece on the date of the accident. Mr V.Ramswaroop, learned counsel appearing on behalf of the Insurance Company, on the other hand, vehemently contended that once the endorsement was not carried forward at the time of renewal, learned Tribunal was right in holding that the driver was not holding a valid driving licence on the date of the accident. The contention of the learned counsel for Insurance Company was, that in view of the facts and circumstances of the case, no liability could be fastened on the insurance Company and furthermore, no direction could be issued for making payment to the claimants, and thereafter recover it from the owner. On consideration of matter, I find force in the contention raised by the learned counsel for the appellant. It is not in dispute, that the license was duly endorsed for HTV vehicle and there was no material to prove, that any request for deletion of HTV was made. Application was made for renewal of licence as granted FAO No.5587 of 2009 5 from time to time. Merely because the Licencing Authority, while renewing the licence committed an error in omitting to add HTV which was duly endorsed earlier, could not be a ground to hold that the driver did not hold a valid driving licence on the date of accident, nor any negligence could be attributed to the owner, as admittedly licence issued had endorsement of HTV. Therefore, the owner had taken all necessary precautions, before appointing respondent No.1 as a driver, to drive the trolla. Finding of the learned Tribunal on issue No.3, therefore, cannot be sustained and deserves to be reversed. On issue No.3 it is held that respondent No.1 had a valid driving licence on the date of the accident. Consequently, appeals Nos.5587 and 5588 of 2009 are allowed. The impugned part of the award, vide which recovery rights have been given to the insurance company, to make recovery from the owner and driver after payment to the claimants is set aside and liability of the Insurance company along with owner and driver is held to be joint and several. For the reasons recorded above, appeal Nos.1706 and 1779 and of 2009 are dismissed. No costs. (Vinod K.Sharma) 22.03.2010 Judge rp