IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.373 of 2004 alongwith FAO Nos.119, 122, 93 and 94 of 2005. Decided on: 17.12.2009 FAO No.373 of 2004. NIC ...Appellant VERSUS Smt.Balkish and ors. ...Respondents. FAO No.119 of 2005. NIC ...Appellant. VERSUS Smt.Neelam Rani and ors. ...Respondents ______________________________________________ FAO No.122 of 2005 NIC ...Appellant. VERSUS Sh.Khem Raj and ors. ...Respondents FAO No.93 of 2005. NIC ...Appellant. VERSUS Sh.Kishan lal and ors. ...Respondents FAO No.94 of 2005. NIC ...Appellant. VERSUS Smt.Farida and ors. ...Respondents …2… Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1No For the Appellant: Mr.Deepak Bhasin, Advocate. For the Respondents: Mr.Ramakant Sharma, Advocate, for the driver of the bus. Ms.Sunita Sharma, counsel for the Haryana Roadways. Mr.Karan Singh Kanwar, Advocate, for the claimants. Deepak Gupta,Judge (Oral) All the aforesaid appeals are being disposed of by this common judgment since identical questions of law are involved in all these cases. The undisputed facts of the case are that an accident of bus No.HR-37-3920 took place on February 21, 2001. The claimants in these cases suffered injuries while traveling in the said bus. They filed claim petitions under Section 166 of the Motor Vehicles Act, …3… 1988 (hereinafter referred to as the ‘Act’) before the learned Motor Accident Claims Tribunal-II, Sirmaur, District Nahan. The bus in question was owned by Haryana Roadways. It was being driven by Sh.Baryam Singh and the same was insured with the appellant-National Insurance Company. The claim petitions were contested by the aforesaid respondents and one of the issues framed was whether the driver of the bus possessed a valid and effective driving licence to drive the vehicle at the time of the accident. The learned Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the bus. It awarded compensation in favour of the claimants and held that the driver had a valid licence and hence the Insurance Company was liable to pay compensation. The Insurance Company has filed all the aforesaid appeals. The only point raised in these appeals is that the learned Tribunal erred in holding that the Insurance Company has failed to discharge its burden that the driving …4… licence issued in favour of the driver was not a valid driving licence. It would be pertinent to mention here that the driver of the bus did not step into the witness box. The Haryana Roadways has only produced a photocopy of the driving licence of the driver which was exhibited as Ext.R/1. This photocopy is a photocopy of the duplicate licence and not of the original licence. The first page of this licence shows that it was issued for Heavy Transport Vehicle (HTV). There is also a tick-mark against the entries ‘Light Motor Vehicle’ and ‘Heavy Goods Vehicle’ but it also appears that ‘heavy goods vehicle’ has also been scored off. The next page of the licence shows that the licence was issued in favour of Sh.Baryam Singh on 17.5.1990 and entitled him to drive a vehicle other than a transport vehicle. This entry is there upto 16.5.1993. Thereafter, the licence was renewed upto 16.5.1996. It is not clear whether any authorization to drive a transport vehicle was made in favour of the driver and if so, on what …5… date. Thereafter, the licence was renewed on 27.6.1996 by the office of the Regional Transport Authority, Ambala Cantt. It was renewed w.e.f. 12.6.1996 to 11.5.1999 and entitled the licence holder to drive a transport vehicle. Similar renewal was made on 11.7.2002 by the Licensing Authority, Panchkula on 12.7.2002 when the licence was renewed from 11.7.2002 to 17.5.2005. It is true that the words ‘HTV’ occur on the first page of the driving licence but a perusal of the entire licence does not show as to how such an endorsement was made on the licence. Coming to the evidence led by the Insurance Company. RW/1 Kuldeep Chand was a Clerk from the office of District Transport Officer, Ambala. He states that the driving licence Ext.R/1 renewed by the DTO, Ambala was for heavy transport vehicle. However, he further states that the endorsement with regard to heavy transport vehicle on the driving licence Ext.R/1 was not made by the DTO, Ambala. This would obviously mean that such …6… entry should have been made by the DTO at Chandigarh or by the DTO at Panchkula. The DTO, Chandigarh whereby the licence was initially issued has not been examined but on the face of it, apparently the licence was issued for non-transport vehicle as indicated hereinabove. RW/2 Jaiveer Singh, Licence Clerk from the office of Licensing Authority, Panchkula stated on the basis of the entries made in the register that the lincence was renewed by the Licensing Authority, Panchkula for light transport vehicle and not for heavy transport vehicle. There was no entry of permission to drive transport vehicle by the Licensing authority, Chandigarh. According to RW/2, the licence issued by the Licensing Authority, Panchkula was also only for LTV. According to RW/1, the renewal by the DTO, Ambala was made for HTV. But this witness clearly states that this endorsement was not made by Licensing Authority, Ambala and it was already existed on the licence. Obviously, …7… something is amiss. If the licence issued by the Licensing Authority, Panchkula was for LTV, how could it have been renewed by the Licensing authority, Ambala for HTV without any further test as required by the law. In this case, I find that neither the Haryana Roadways nor the driver produced any evidence in support of their case. It cannot be said with certainty on the basis of the material on record as to whether the licence was valid or not? The learned Tribunal in my opinion erred in holding that this a minor discrepancy. Whether the driver is entitled to drive a particular class of vehicle or not is not a minor thing. The Apex Court in New India Assurance Co. Shimla Vs. Kamla and others 2001(1) SCC 1419 held that mere renewal of a fake licence will not clothe it with validity. It was the duty of the driver or the Haryana Roadways to produce on record the material to show how an entry of HTV was incorporated in the licence of the driver. Therefore, I feel that this issue must be decided afresh. …8… Keeping in view the aforesaid discussion, while upholding the findings on all other issues, the matters are remitted to the learned Tribunal to decide issue No.3 afresh after giving an opportunity to the parties to lead any further evidence, if so desired. Since I have not disturbed the award on merits, the claimants are not required to be present before the Tribunal. The dispute now is only between the Haryana Roadways and the Insurance Company. The Tribunal shall not insist upon the presence of the claimants who need not appear before it. The learned counsel for the Insurance Company, Haryana Roadways as well as the driver are directed to ensure that their clients appear before the Ld.MACT, Nahan on 14.1.2010. The Registry is directed to ensure that the entire record of the case is sent back so as to reach the Learned Tribunal before the said date. The learned Tribunal shall then give two opportunities to each of the parties to produce evidence, if they so desire and thereafter, decide the matter afresh in the light …9… of the observations made hereinabove. The Tribunal shall not grant more than two opportunities to either party to lead any evidence. The claimants shall be entitled to withdraw the amount deposited by the Insurance Company in this Court. However, the Insurance Company shall have the right to recover the same from the Haryana Roadways in case the finding of issue No.3 is given in their favour. The Registry is directed to send back the record of the Trial Court in the case in which the evidence has been recorded. In case the same is required in any CMPMO, the same can be called for again. December 17, 2009 ( Deepak Gupta ) (m) Judge.