Shri Om Prakash vs New India Assurance Co. Ltd. And ...
2006 Latest Caselaw 2158 Del

JUDGMENT

Kailash Gambhir, J.

1. Aggrieved with the order passed by the learned MACT, the appellant has preferred the appeal under Section 173 of the Motor Vehicles Act, 1988. The appellant is aggrieved with two orders i.e., order/judgment dated 23.10.2003 passed by the Presiding Officer, MACT in Petition No. 636/2000 and secondly against the order dated 21.11.2005 passed by the learned MACT dismissing the objections of the appellant under Order 21 Rule 58 of the Code of Civil Procedure. The appellant is the owner of the offending vehicle which was being driven by respondent No. 3- Mr.Samud Singh. The main contention raised by the appellant in the present appeal is that although the driving license, the certified copy of which was seized by the police from the driver Samud Singh after the accident was for driving Light Motor Vehicle, in short referred to as LMV but in fact the driver was already in possession of HTV license. Counsel for the appellant, therefore, contends that the driver was in possession of proper and valid driving license i.e. H.T.V. for driving Heavy Transport Vehicle, but due to some inadvertence and negligence, the said HTV license could not be proved as per the provisions of the Indian Evidence Act. Along with the said appeal, the appellant has also filed an application under Order 41, Rule 27 read with Section 151 CPC seeking permission of this Court to allow the appellant to place on record the original driving license issued by the competent authority for driving Heavy Transport Vehicle. The ground given by the appellant is the same that due to carelessness and negligence of the earlier counsel, the appellant could not prove the valid driving license of the driver and during the course of filing objections under Order 21 Rule 58, the appellant had filed the said valid and proper HTV driving license. The objections filed by the appellant against the execution application filed by the insurance company were dismissed vide order dated 21.11.2005. The operative para of the said order is reproduced as under:

The owner of the offending vehicle Om Prakash is now in these execution proceedings claiming that the driver of the offending vehicle at the time of the accident was, in fact, having a driving license meant for HTV but the same could not be filed when the claim petition was going on as the license was in the custody of the driver who did not file the same because of which miscarriage of justice has occasioned. A photocopy of the driving license of the driver Samood Singh was also annexed with the objection petition. It has been prayed by the objector that the execution application of the insurance company may be dismissed because the driver of the offending vehicle was having a valid license at the time of the accident.

In my view this objection petition is liable to be dismissed because the objections now being taken in execution proceedings could be taken only when the claim petition itself was pending and respondents were given opportunity to defend the claim of the claimant on all possible grounds as well ags that of the insurance company that the driver of the offending vehicle was not holding a valid license. I, therefore, dismiss the objection petition.

2.The appeal filed by the appellant as well as the application under Order 41 Rule 27 have been jointly taken up for disposal.

3.The bone of contention raised by the appellant in the appeal as well as in the application is that the appellant could not prove the HTV license which was in his power and possession due to the negligence of the counsel, then, appearing for the appellant. It is not in dispute that at the time of seizure by the police, the driver of the offending vehicle has produced the driving driving license meant for driving LMV(NT) and no HTV license was found in his possession. To prove this fact that the driver was in possession of LMV license, the insurance company had produced a witness from the Office of Motor Licencing, Mall Road, Delhi who has proved the verification report of the Motor Licencing Officer of the LMV driving license of the driver. The certified copy of the seizure memo of the said driving license has also been produced which shows that the driver was in possession of the said driving license to drive LMV (NT) and not HTV vehicles.

4. Section 2(21) of the Motor Vehicles Act defines 'light motor vehicle' while Section 2(47) defines 'transport vehicle'. The definitions are reproduced as under:

(21) light motor vehicle " means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7,500 Kilograms)

(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;

5. The question, in the present case, is not whether the driver holding license to drive light motor vehicle could also drive the heavy transport vehicle. But the precise question is whether the appellant can be permitted at this stage to prove the HTV driving license which was not proved by the appellant during the course of trial court proceedings. If the owner and the driver were in possession of HTV driving license then the same was required to be produced before the MACT during the course of the trial and not at the present stage when the trial is already over and recovery proceedings were initiated by the insurance company against the owner. The arguments advanced by the learned Counsel for the appellant are without any force and substance that it was only due to recklessness on the part of the counsel appearing for the appellant, the correct driving license could not be placed before the Tribunal. To cover up the lapses of the parties, the lawyers are targetted as easy scape goats.

6. Based on the said documentary evidence and depositions, the learned MACT found that the driving license of Samud Singh was LMV(NT) and not LMV (Commercial) or H.T.V. The Tribunal has further observed that during the course of proceedings, the driver and the owner were duly represented by the counsel but later on the counsel appearing for both of them had absented himself, for the reasons best known to them and they even did not appear despite notices being sent under order 12 Rule 8 CPC by the insurance company through an advocate. Copy of the notice sent by the advocate has also been exhibited as Ex.RW2/2. These notices were separately sent to the driver as well as the owner. Driver Samud Singh and the owner did not prefer to appear despite service of the notice sent by the advocate of insurance company. Under these circumstances, the Tribunal found that since as per the insurance policy, the liability on the insurance company could only be fastened if the driver was holding a valid driving license to drive the HTV and, therefore, in view of the judgments of the Hon'ble Supreme Court, the Court gave directions to the insurance company to satisfy the award and the same could be recovered by the insurance company from the owner, insured.

7. The driving license is the most basic document to be relied upon in the MACT proceedings and if the driver or the owner did not prefer to place the genuine driving license before the Tribunal at the appropriate stage during the trial of the case then at this stage, the owner cannot be permitted to place reliance on the HTV license or to place the same on record. Surprisingly, the owner has awakened quite late not only after the passing of the judgment but at the stage of execution. Although the award has already been satisfied by the insurance company but this practice of producing fake license or not producing the genuine and authentic license at the proper stage during the course of proceedings is required to be curbed. The owner ought to have made efforts at the appropriate stage of placing the correct license before the Tribunal and it is not after the directions are made to recover the amount from the owner by the insured then only the owner will get activated. No plausible or cogent reasons have been disclosed in the application moved under Order 41 Rule 27 CPC which can satisfy the Court for permitting him to place the driving license of HTV at this stage. The scope and ambit of Order 41 Rule 27 is that only those cases where the evidence could not be produced upon the exercise of due diligence, the party can be permitted to produce an additional evidence. Order 41 Rule 27 is an exception to the general rule and the parties must place all the documents in their possession and power at the earlier stage. Order 41 Rule 27 clearly mandates that the parties to the appeal shall not be entitled to produce additional evidence whether oral or documentary unless such party qualifies any of the circumstances given in Clauses a to b of Order 41 Rule 27 which is reproduced as under:

27. Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

8. Admittedly, the license being sought to produce at this stage was in possession and power of the driver but the driver preferred to remain absent despite court notice as well as notice served by the insurance company. Similarly, the owner also did not put any efforts to produce the license which is now being sought to be produced along with the application without satisfying the requirements as envisaged under Section 41 Rule 27 CPC.

9. For the foregoing, I do not find any merit either in the appeal preferred by the appellant or in the application filed by the appellant under Order 41 Rule 27 CPC.

10. Both the appeal as well as the application are hereby dismissed.

11. The amount deposited by the appellant be released in favor of the insurance company.