Delhi High Court
Shivraj vs Malpu @ Malakwa & Ors. on 17 September, 2012
Author: G.P. Mittal
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th September, 2012
+ MAC. APP. No.187/2010
SHIVRAJ ..... Appellant
Through: Mr. M.L. Sharma, Advocate
Versus
MALPU @ MALAKWA & ORS. ..... Respondents
Through: Mr. Dharmesh Kumar with Mr. Sushil
Kumar, Advocate for the Respondents
No.1 & 2.
Mr. A.C.Mittal, Advocate for the
Respondent No.4 Insurance Company.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Shivraj who is the owner of the offending vehicle delivery
van No.DL-1LH-1817 impugns the judgment dated 11.01.2010 passed by
the Motor Accident Claims Tribunal(the Claims Tribunal) solely on the
ground that the driver of the vehicle (Respondent No.3 Ram Kumar)
possessed a valid driving licence on the date of the accident, that is,
09.03.2008. Thus, the Claims Tribunal fell into error in exonerating the
Insurance Company and fastening liability on him and the driver of the
vehicle.
2. There is no Appeal by the Claimants on the issue of liability.
3. The learned counsel for the Appellant has produced the original licence at
the time of the hearing, copy of which is also on page 31 of the paper
book. He submits that this licence was issued on 16.03.1987 and it shows
that the same was valid upto 07.05.2012.
4. The Claims Tribunal dealt with the issue of liability as under:
"23. Ld. counsel for insurer argued that the driver of the
vehicle in question was not having any valid or effective
driving licence as on the date of accident, so the insured, the
vehicle owner had committed breach of terms and condition
of the policy of the vehicle in question and insurer was not
liable to pay compensation sum.
24. R3W2 Sh. Pawan Kumar, LDC from Janak Puri
Transport Authority testified and proved the computerized
record of driving licence No.P04032008559280 of respondent
No.1 in two sheets as Ex. R3W2/A(colly.). Said licence was
issued on 18/03/08 i.e. 9 days later to the accident. R3W2 also
proved the computerized record of driving licence
No.DL0419870034237 in the name of Sh. R. K. Mishra,
running into three sheets, Ex. R3W2/B(colly.). R3W2
testified that the said licence had expired on 21/09/04 but was
renewed on 08/05/09, while in the period from 22/09/04 upto
07/05/09, the said licence was not got renewed. So as on
09/03/08, the said licence was not valid as it stood previously
expired.
25. This is a case where the respondent No.1, the driver
had got issued two driving licences. As per own written
submissions of respondent No.1 filed on 27/10/09, he was
holder of two driving licences afore stated. Respondent No.1
took the plea that licence No. DL0419870034237 was got
issued for running commercial vehicle while the other licence
No.P04032008559280 was for driving of light motor vehicle
for which his application for private driving licence was
pending with the concerned authority earlier and was issued
to him on 18/03/08 after the fulfillment of the prescribed
requirement.
26. R2W1, the vehicle owner in his affidavit stated that on
24/06/06, one Sh. Ram Kumar , the respondent No.1
approached him for employment as a Driver and handed him
over driving licence No. DL0419870034237(C) which was
valid from 16/03/1987 to 07/05/2012 for M. CYL, 3W-TSR
vehicle, Ex. RW2/1 and accordingly he was asked to drive
Delivery Van which he did to the satisfaction of respondent
No.2, so respondent No.1 was employed as employee and was
told to get his licence verified from the concerned authority
and the verification report handed over to respondent No.2
was as Ex. RW2/2. The versions of respondents No.1 & 2 has
been proved wrong by the testimony of R3W2 and the record
produced and proved by him aforestated. Ex. R3W2/B(colly)
depicts of driving licence No. DL0419870034237 having
expired on 21/09/04 which was renewed on 08/05/09. As per
testimony of R3W2, said licence was not got renewed in the
period from 22/09/04 upto 07/05/09. There is absolutely no
question nor any occasion for respondent No.2 to have seen
the driving licence whose copy is Ex. RW2/1 alleged to have
been shown by respondent No.1 on 24/06/06, since it was
renewed on 08/05/09 and not before. Even Ex. RW2/2, the
extract of the driving licence issued by the licencing authority
is of date 14/09/09 and not of any date of year 2006. Falsity in
testimony of respondent No.2 is apparent on the face of
record, so as to escape liability.
27. It is borne of record and proved by respondent No.3,
insurer that on 09/03/08, on the date of accident, respondent
No.1 was not holding any valid or effective driving licence to
drive the vehicle in question, since his driving licence stood
previously expired on 21/09/04, as per Ex. R3W2/B.
28. R3W1 has proved the insurance policy Ex. R3W1/5 as
well as the notice u/o 12 R 8 CPC, Ex. R3W1/1 sent vide
postal receipt, Ex. R3W1/2, Ex.R3W1/2A and Ex. R3W1/3 to
the respondents No.1 & 2 for production of valid driving
licence of respondent No.1 as on the date of accident. Since
respondent No.1 was not holding any valid driving licence as
on the date of accident and respondent No.2 permitted
respondent No.1 to drive his vehicle without any valid driving
licence, in terms of law laid in the cases of (1)Malla
Prakasarao v. Malla Janaki & Ors, reported in (2004)3
Supreme Court Cases 343 and (2) Sardari & Ors v. Sushil
Kumar & ors, reported in 2008(2) CCC 13(SC), insurer is not
liable to pay compensation. In terms thereof, the tortfeasors
viz., respondents No.1 & 2 being the driver and the owner of
the offending vehicle are liable to pay compensation sum to
the claimants. Even insurer is entitled and is so granted the
recovery rights to recover the interim compensation sum with
interest at same rate from the date of payment till realization
from the respondents No.1 & 2 jointly and severally."
5. The original licence produced by the learned counsel for the Appellant
for the perusal of the Court shows that the same was issued on
16.03.1987 and it was valid from 08.05.2009 to 07.05.2012. Since, it was
the Appellant's plea that the licence was valid throughout from
16.03.1987 till 07.05.2012, this Court summoned the concerned
MLO(Mr. P.S. Panchpal) from West Zone-I, Janakpuri. He deposed as
under:
"...Initially, the licence was valid for a period of three years
w.e.f. 16.03.1987. It was renewed on 22.09.2001 upto
21.09.2004 and thereafter the licence was renewed on
08.05.2009 upto 07.05.2012. This licence was not renewed
for the period 22.09.2004 to 07.05.2009. The transport
licence is valid only for a period of three years, whereas a
non-transport licence is valid for a maximum of 20 years as
per the age of the applicant or upto the age of 50 years.
The date of renewal is not mentioned in Ex.RW2/1 as it was
not provided in the software. Only the date of issue and the
last date of validity used to be mentioned earlier. Now the
software has been changed and the date of renewal is also
mentioned. The original licence is seen by me is a
computerized licence. The computerized licence by Saarthi
Software in question has been issued, were started only in
the year 2007. The computerized licence was not issued in
the year 1987. My report dated 22.07.2011 is Ex.C1."
6. It is apparent from the testimony of the MLO that the driver(Respondent
No.3) did not possess any licence during the period from 22.09.2004 to
07.05.2009. The Claims Tribunal rightly held that the Appellant's plea
that he himself saw the driver's licence at the time of engaging him in the
year 2006 was palpably false. The Claims Tribunal rightly came to the
conclusion that there was a wilful and conscious breach on the part of the
Appellant.
7. Thus, the Appeal is devoid of any merit; accordingly the same is
dismissed.
8. Statutory amount of `25,000/- deposited by the Appellant along with
interest, if any, shall be released in favour of the Respondents No.1 and 2
in equal shares. No further amount was deposited by the Appellant. The
Respondents No.1 and 2 shall be at liberty to take the execution of the
impugned judgment.
9. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
SEPTEMBER 17, 2012
pst
