Punjab-Haryana High Court
Naresh Kumar vs Dharampal And Ors on 11 July, 2022
FAO-4336-2015 - 1-
FAO-4337-2015
261 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. FAO-4336-2015
Date of Decision : July 11, 2022
Naresh Kumar .....Appellant
Vs.
Dharampal and others ....Respondents
2. FAO-4337-2015 (O&M)
Naresh Kumar .....Appellant
Vs.
Dharampal and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Rakesh Dhiman, Advocate
for the appellant(s)
Mr. V. Ramswaroop, Advocate
for the Insurance Company.
ARVIND SINGH SANGWAN, J.
By way of this common judgment, this Court intends to
dispose of both the above-mentioned appeals, which have been arisen
out of the award of even dated 26.3.2015 passed by the Motor
Accident Claims Tribunal, Gurgaon.
Prayer in these appeals is to set aside the impugned award
vide which the Tribunal, while deciding the claim petitions under Issue
Nos.3 and 4 held that Richpal-respondent No.1 before the learned
Tribunal at Gurgaon was not holding a valid driving license to drive the
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offending vehicle No. HR-55-N-1950 and has, thus, held the appellant
liable to indemnify the insurer. The operative part of the judgment
reads as under :-
"21. I have heard the rival contentions of learned
counsel for the parties and have perused the case
file very carefully.
22. In the present cast Ex.P5 is the driving licence
of respondent No.1-Richpal. From the perusal of the
same it reveals that respondent No.1 was having
driving licence to drive motorcycle with gear and
light motor vehicle. He was not authorized to drive
heavy vehicle Ex.P3 is the certified copy of national
permit of the vehicle and Ex.P4 is the certified copy
of RC of the offending vehicle. From the perusal of
the same it reveals that the offending vehicle was a
heavy goods vehicle. The respondent No.1 was not
authorized to drive heavy goods vehicle. Although
the respondent No.1 was having a valid driving
licence but, he was not authorized to drive the
offending vehicle. Meaning thereby while driving the
offending vehicle, the respondent No.1 has violated
the terms and conditions of the insurance policy.
Therefore, the respondent No.3 is not liable to
indemnify the insured because the owner and the
driver of the offending vehicle have violated the
terms and conditions of the insurance policy.
However, in view of the law laid down by the
Hon'ble Apex Court in National Insurance Company
Vs. Swaran Singh and others, 2004(1) PLR 510,
insurance company shall pay the compensation
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amount with its right to recover the same from
respondents No.1 and 2.
With these observations, all the aforesaid
issues are decided in favour of respondent No.3,
accordingly."
It is argued on behalf of the appellant that the respondent-
Insurance Company has already paid the amount to the claimant and in
pursuance to the recovery rights given to the respondent-Insurance
Company on the ground that the appellant, being the owner and
respondent No.1-Rachpal, who was driver of the offending vehicle, was
not having a valid licence to drive the heavy vehicle, has not properly
appreciated the driving licence Ex.P5, on which an endorsement is
made for heavy goods vehicle.
Counsel for the appellant has submitted that the appellant,
at the first instance, has moved an application for reviewing the award
before the Tribunal that on the driving licence Ex.P5 there is a due
endorsement by the RTA that he is holding a valid driving licence to
drive a heavy goods vehicle w.e.f. 18.6.2009 to 5.5.2012 and, later on,
renewed from 21.6.2012 to 20.6.2015, therefore, on the date of
accident, i.e. 26.2.2014, the driver was holding a valid licence to drive
the heavy goods vehicle.
Counsel for the appellant has further submitted that even
in the written statement filed before the Tribunal, it was stated that the
respondent No.1 was holding a valid and effective driving licence to
drive the alleged offending vehicle on the date of accident and the
vehicle was insured with respondent No.3-Insurance Company.
Counsel for the appellant has further submitted that though a plea is
taken by respondent No.3 in the written statement that the driver of
the offending vehicle was not holding a valid and effective driving
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license to drive the heavy vehicle, therefore, the Insurance Company is
not liable in this regard.
Counsel for the appellant has referred to the statement of
PW1 Madan Lal, Additional Ahlmad in the Court of SDJM, where the FIR
was registered against the driver of the offending vehicle and the
driving license Ex.P5 was taken in possession by the police, proved the
copy of the driving license Ex.P5 on which there is an endorsement
dated 21.6.2012 that the driving license was renewed from 21.6.2012
to 20.6.2015 for a heavy goods vehicle.
Counsel for the appellant has further submitted that no
suggestion was given to PW2 Dharam Pal that the appellant was not
holding a valid driving license. He further submits that no evidence to
the contrary was led by respondent No.3-Insurance Company to prove
that the license was either not a valid driving license or was not valid
for driving the heavy goods vehicle and in the absence of any evidence,
the Tribunal has wrongly drawn presumption that the driver of the
offending vehicle was not holding a valid driving license to drive the
heavy goods vehicle.
Counsel for the appellant has submitted that the driving
license No.3299/MVDIR dated 18.1.2003 was renewed vide renewal
No.9760/MVD/R-12 by the Licensing Authority, Motor Vehicle
Department, Rajouri from where the license was initially issued on
18.1.2003 and later on, vide the first endorsement dated 5.5.2012 as
well as second endorsement dated 21.6.2012 was endorsed for heavy
goods vehicle. Counsel for the appellant has further submitted that,
thus, the findings recorded by the Tribunal that the driver of the vehicle
was holding a driving license only for motorcycle or light motor vehicle
is apparently a wrong observation. Thus, the recovery rights have been
wrongly given to the Insurance Company.
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Counsel for the respondent-Insurance Company when
confronted with Ex.P5, wherein there are two endorsements, first
endorsement is valid from 18.6.2009 to 5.5.2012, whereas the second
endorsement with regard to renewal of license is w.e.f. 21.6.2012 to
20.6.2015, whereas the accident in question has taken place on
26.2.2014. It is also not disputed that the Insurance Company never
examined the driver as a witness so as to confront him that the license,
which he was holding, a valid driving license as the onus of Issue No.3
was on respondent No.3. The issue No.3 reads as under :-
"Whether the respondent No.1 was not holding
a valid and effective driving licence at the time
of accident ? OPR (3)"
Counsel for the appellant submits that once the onus to
prove this issue was on respondent No.3-Insurance Company, the
appellant has duly proved the license and to the contrary no evidence
was led by the Insurance Company, thus, findings have been
erroneously recorded by the Tribunal.
After hearing the counsel for the parties, I find force in
the above-mentioned these appeals.
Since there is no dispute with regard to grant of
compensation and the negligence and only issue, in contest, is Issue
Nos.3 and 4 as to whether the driver of the offending vehicle was
holding a valid and effective driving license on the date of accident
to drive a heavy goods vehicle and whether the appellant have
violated the terms and conditions of the insurance policy. On
re-appreciation of evidence, especially the driving license Ex.P5, this
Court finds that the driver was holding a valid and effective driving
licence to drive the heavy goods vehicle on the date of accident i.e.
26.2.2014.
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Accordingly, these appeals are partly allowed and
findings recorded by the Motor Accident Claims Tribunal, Gurgaon
under issue Nos.3 and 4, qua the appellant and driver of the
offending vehicle are set aside and recovery rights given to the
Insurance Company against the appellant, being the owner and the
driver of the offending vehicle, are reversed and it is held that the
Insurance Company is liable to pay the compensation to the
claimants.
Disposed of accordingly.
( ARVIND SINGH SANGWAN )
July 11, 2022 JUDGE
satish
Whether speaking/reasoned : YES / NO
Whether reportable : YES / NO
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