Himachal Pradesh High Court
Parveen Kumar vs Smt. Radha Devi And Others on 3 June, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO (MVA) No. 359 of 2015
Judgment Reserved on 1.6.2016
.
Date of decision: 3.6.2016
Parveen Kumar. ...Appellant
Versus
Smt. Radha Devi and others. ...Respondents
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes.
For the Appellant:
rt Mr.Ajay
Advocate.
Kumar Dhiman,
For the Respondents: Mr. G.D. Sharma, Advocate, for
respondents No. 1 and 2.
Mr.Chandan Goel, Advocate, for
respondent No. 3.
Tarlok Singh Chauhan J.
The seminal issue that emanates for consideration in
this appeal is as to what would be the effect of a person possessing
two driving licences, more particularly when the licence
subsequently produced appears to be genuine.
2. The facts giving rise to the present appeal are that the
deceased Anuraj was a pillion rider of motorcycle being driven by
the appellant, when the same met with an accident on 10.9.2007
leading to the death of Anuraj.
3. The respondents as usual contested the claim petition
and out of the pleadings, the learned Tribunal below on 18.7.2011
famed the following issues:-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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2 FAO (MVA) No. 359 of 2015
"1. Whether Sh. Anuraj Sharma had died on account of
rash and negligent driving of vehicle No. HP-31A-0892
by respondent No. 1? OPP
2. If issue No. 1 is proved, to what amount of
.
compensation and from whom are the petitioners
entitled to? OPP
3. Whether the petition is not maintainable against the
respondents? OPR
4. Whether respondent No. 1 had not been in possession
of a valid and effective driving licence, if so, to what
of
effect? OPR-2.
5. Relief."
4.
rt
In the instant appeal, this Court is only concerned with
Issue No. 4. The learned Tribunal while determining this issue
observed as under:-
"22. Before I proceed to consider merits of the submissions,
it is necessary to mention here that respondent Parveen
Kumar examined himself as RW-1 and clearly established
that he is owner of motorcycle No. HP-31A-0892. He has
exhibited R.C. copy of which is Ext. RW-1/A, policy of
insurance Ext. RW-1/B and his driving licence Ext. RW-1/C.
Respondent No. 1 was subjected to cross examination and
admitted that his driving licence was taken into possession
by the police and the other copy was lying with him at home.
He has handed over the copy of licence mark-A to the police
and the said licence was admittedly issued on 26.12.2000.
Bare perusal of the above licence would show that the said
licence is valid for L.M.V. (non transport). Admittedly,
motorcycle is not covered by L.M.V. The said licence was
issued on 26.12.2000 and was valid up to period
25.12.2030.
23. There is also another licence Ext. RW-1/C which
respondent No. 1 has obtained from Bhind (M.P). It was
strongly contended on behalf of respondent No. 2 insurance
company that insurance company is not legally entitled to
indemnify the amount of compensation for the reason that
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3 FAO (MVA) No. 359 of 2015
respondent No. 1 was not holding a valid licence to drive
motorcycle. Admittedly, mark-A clearly shows that
respodnent No. 1 was entitled to drive light motor vehicle
.
(non-transport) and there is no mention of motorcycle in the
said licence. However, in the other licence Ext. RW-1/C
there is mention of motorcycle plus L.M.V."
5. The learned Tribunal thereafter by placing onus upon
the Insurance Company to prove that the driver was not holding a
of
valid and effective driving licence at the time of accident placed
reliance upon the judgment of the Hon'ble Supreme Court in
rt
National Insurance Company Ltd. Vs. Swaran Singh, (2004) 3
SCC 297 and proceeded to observe as under:-
"....In the case in hand the first driving licence of the
respondent No. 1 is mark-A which he has handed over to
the police. It is clear from perusal of mark A that there is
endorsement of driving of LMV (Non-Transport). Since the
respondent No. 1 has admitted that original of mark A of
which was handed over to police, as such, this photostate of
mark A can be taken into consideration as the genuineness
of this document is not disputed by the respondent No. 1
himself. Therefore, the subsequent licence Ext.RW-1/C
produced by respondent No. 1 cannot be taken into
consideration. Though, in Ext. RW-1/C there is mention of
motorcycle + LMV but date of birth of respodnent No. 1 in
this licence is recorded as 02.01.1981, whereas in mark A is
recorded as 10.10.1981. As discussed above there cannot
be two driving licence in respect of same driver with respect
to the same period. Licence Ext. RW-1/C has been issued
by Licensing Authroity Bhind (M.P). Respondent No. 1 in
his statement while appearing as RW-1 also admitted that
his date of birth is 10.10.1981. Therefore, date of birth
recorded in second driving licence Ext. RW-1/C as
02.01.1981 is wrong. Consequently, second driving licence
Ext. RW-1/C cannot be taken into consideration. The net
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4 FAO (MVA) No. 359 of 2015
result of discussion is that respondent No. 1 was not holding
a valid driving licence to drive motorcycle at the time of
accident. However, in the light of the ratio of law laid down
.
in Swaran Singh's case (supra) the insurance company
cannot escape to indemnify the amount of compensation to
which the respondent No. 1 is held liable. Accordingly, it is
held that respondent No. 2 will indemnify the amount of
compensation initially and would have right to recover the
same from respondent No. 1 without filing any separate suit
of
or proceedings. Both these issues are decided
accordingly."
6.
rt
Aggrieved by the aforesaid findings, the owner/driver of
the vehicle has filed the instant appeal on various grounds, as taken
in the memo of the appeal.
I have heard learned counsel for the parties and gone
through the records of the case.
7. Section 6 of the Motor Vehicles Act, 1988 (for short the
"Act") reads thus:-
"6. Restrictions on the holding of driving licences.-- (1) No
person shall, while he holds any driving licence for the time
being in force, hold any other driving licence except a
learner's licence or a driving licence issued in accordance
with the provisions of Section 18 or a document authorizing,
in accordance with the rules made under Section 139, the
person specified therein to drive a motor vehicle."
8. This Court in National Insurance Company Vs. Mast
Ram and others, Latest HLJ 2004 (HP) 461, held that even if the
driver of the vehicle possessed two licences, one of which was
found to be fake, the one found fake cannot be said to have been
issued under the Act and would be thus void and nonest, whereas
the other issued under the provisions of the Act would be required to
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5 FAO (MVA) No. 359 of 2015
be held a legal and valid and therefore, the compensation claim
cannot be rejected. It is apt to reproduce the following
.
observations:-
"8. The plea urged on behalf of the insurance company
regarding driver Sher Singh holding two driving licences is
self-contradictory and mutually destructive. Reason being
that the licence to enable a person like Sher Singh driver in
of
this case, is required to be issued by an authority under the
Act. Admittedly, the one purported to have been issued by
the authority at Hyderabad was not under the Act and was
rt
found fake, not only by the surveyor but also on the basis of
statement recorded at Hyderabad by the local
Commissioner appointed by the Tribunal below. Thus, the
licence purported to have been issued by the authority at
Hyderabad for all purposes is void and non est. Therefore,
to say that the driver was holding two licences, as noted
above, is not correct. Once it is so held, then the only
licence survives on the file is which was duly proved and it
was even not disputed at the time of hearing that it is legal
and valid, as also having been duly proved by the witness
from the office of the Registering and Licensing Authority
concerned. May be that owner of the vehicle had
given copy of the licence on the basis of which own damage
claim was repudiated by the insurance company. But this
would not mean that the validity and legality of the proper
licence as required under law, is also destroyed.
9. In this behalf, it may also be appropriate to note that it is
not the case of the appellant that legal and valid licence did
not authorise the driver to have driven the vehicle in
question at the time of accident. Thus, to say that he was
holding two driving licences is not correct. For all purposes,
the licence issued by the Licensing Authority, Suni Sub-
Division, is the only valid and legal authority whereunder
Sher Singh driver, could have driven the vehicle in question.
On a reading of the provisions of law relied upon by Mr.
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6 FAO (MVA) No. 359 of 2015
Sharma, it is manifestly clear that it speaks of driving
licence. This presupposes that it has to be a licence under
the provisions of the Act and not something that is not
.
envisaged under the Act. Suffice it to say in this behalf that
some other liability under law might have been incurred by
the person holding the licence allegedly issued by the
authority of Hyderabad that is proved to be fake in this case.
But in the face of the licence proved to be issued as per law,
case of respondent No. 1 cannot be rejected."
of
9. In FAO No. 494 of 2008, titled Harnek Singh (dead)
through LRs Vs. Varinder Singh and others, decided on
rt
16.7.2015 a coordinate Bench of this Court was confronted with an
identical issue and after placing reliance upon the judgment in Mast
Ram case (supra), it was observed as under:-
"9. In the instant case, the driver has discharged the burden
by producing and proving the original licence, authenticity of
which was never in doubt.
10. That there is breach of condition of policy, relating to
holding of a valid driving licence, is the onus which the
Insurer has to discharge. Once licence was duly proved by
the driver, the burden only rested upon the Insurer to prove
the same.
11. In the instant case, the Tribunal erred in coming to the
conclusion that the driver suppressed the factum of valid
licence and consequently there was breach of condition of
the policy. The driver has reasonably explained about the
original licence having been placed in the judicial file,
pertaining to the criminal proceedings initiated with respect
to the very same accident, against the driver, as this Court
stands informed."
10. It is evident from perusal of para 23 of the award
passed by the learned MACT (as quoted in extenso above) that the
licence Ex. RW-1/C authorized the driver to drive motorcycle plus
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7 FAO (MVA) No. 359 of 2015
LMV and that being the position, this Court is otherwise left with no
other option, but to allow this appeal, more particularly when the
.
question posed herein is already covered by the earlier judgments
rendered by this Court, which as per judicial discipline and propriety
are otherwise binding upon this Court.
11. Uniformity and consistency is core of judicial discipline.
of
Earlier judgments are taken to be binding of subsequent equi
Bench, until and unless the reasons compelling for taking divergent
rt
view are stated. The essence of law of precedent is its applicability
to the ratio decidendi and discipline. This can be gathered from the
judgment rendered by Hon'ble Supreme Court in Somabhai
Mathurabhai Patel Vs. New Shorrock Mills, 1983 GLH 273, which
reads thus:
"1. While we are not inclined to grant special leave at this
stage, we, however, record out disapproval of the way in
which the learned Single Judge has dealt with the judgment
of Hon. M.C. Trivedi, J which dealt with the identical point
and which judgment was binding on the learned Judge. It is
not open to a learned Single Judge to reject the ratio of the
decision of another learned Single Judge of the same High
Court? by merely saying that attention of M.C. Trivedi J. was
not invited to the decision of Supreme Court which may
have an impact on the point under examination. Judicial
comity demands and this Court has often reiterated that in
that event the matter should be referred to a larger Bench.
But in this case, learned Judge has observed that he is
unable to agree with the view taken by M.C. Trivedi, J.
because in his view the question was directly covered by an earlier decision of this Court. That aspect of the matter itself needs examination. Therefore, if the matter at any stage goes back to the High court and the same question is raised ::: Downloaded on - 15/04/2017 20:34:05 :::HCHP 8 FAO (MVA) No. 359 of 2015 in the interest of justice it should be heard by a Division Bench. Mr.Kaji, learned Advocate for the petitioner made another grievance that the relief was granted in the absence .
of a pleading in the plaint on the question of tenancy as covered by Section 13(1)(f) of the Bombay Rent Act as applicable in Gujarat. Mr. Arun Mehta, learned Advocate for respondent appearing on caveat conceded that as the matter be remanded to the District Judge, Nadiad, plaintiff will seek permission for appropriate amendment of the of plaint. If such an application is made, learned Judge may deal with it according to law and it should not be understood rt that this Court has directed such an amendment being made."
12. However, to be fair to the learned counsel for respondent No. 3, I may state that he has placed strong reliance upon the following judgments:-
National Insurance Company Vs. Nant Ram and others, Latest HLJ 2005 (HP) 153, Oriental Insurance Co. Ltd.
Vs. Rama Sahu and others (2005) III ACC 147, New India Assurance Company Vs. Tika Ram and others 2011 (3) Shim.LC 95, National Insurance Company Ltd. Vs. Suresh Chand and others 2014 (1) T.A.C. 446 and National Insurance Company Ltd. Vs. Arfoon Nisa and others 2015 (4) T.A.C. 399.
13. In National Insurance Company Vs. Nant Ram and others, Latest HLJ 2005 (HP) 153, it was held that irrespective of whether the driving licence ultimately turns out to be false, fake or invalid, in the first instance, it is the Insurance Company, which is liable to pay the awarded amount to the claimant and ultimately would be entitled to recover it from the owner.
::: Downloaded on - 15/04/2017 20:34:05 :::HCHP 9 FAO (MVA) No. 359 of 201514. In Oriental Insurance Co. Ltd. Vs. Rama Sahu and others (2005) III ACC 147, the learned Orissa High Court was .
dealing with a case regarding two driving licences and it was observed that the Tribunal has lost site of the fact that there could not be two original licences issued by the two different authorities in the name of same person and therefore, in such circumstances, of there was grave doubt as to whether the driver of the offending vehicle was holding a valid licence or not. However, without rt determining this question, the initial liability to pay compensation was fastened upon the Insurance Company.
15. In New India Assurance Company Vs. Tika Ram and others 2011 (3) Shim.LC 95, the question before this Court was whether the person holding a licence entitling him to drive a light motor vehicle is also entitled to drive a two wheeler scooter or motor cycle or not and obviously the answer was in the negative.
16. In National Insurance Company Ltd. Vs. Suresh Chand and others 2014 (1) T.A.C. 446, learned Delhi High Court was again dealing with a case where the driver of the offending vehicle was not having a licence strictly in terms of Section 10 of the Act and in such circumstances the initial liability was fastened upon the Insurance Company giving it a right to recover the same from the owner.
17. In National Insurance Company Ltd. Vs. Arfoon Nisa and others 2015 (4) T.A.C. 399, the learned Single Judge of Hon'ble Punjab and Haryana High Court was dealing with a case ::: Downloaded on - 15/04/2017 20:34:05 :::HCHP 10 FAO (MVA) No. 359 of 2015 where the driver was having two driving licences and after relying upon the provisions of Section 6 of the Act, it held as follows:-
.
"11. The language of the aforesaid Section is clear that a person can have only one driving licence at one point of time. If any addition is to be made, the same has to be endorsed in the same driving licence.
12. Why a person would have two driving licences. The reason is obvious - to hood-wink the law enforcement of agencies. A particular driving licence is to be used in a particular set of circumstances as per convenience of the user. In criminal proceedings a forged driving licence is rt handed over to the police, but in proceedings under Motor Vehicles Act, to avoid civil liability, another driving licence which is perhaps 'obtained' for that very purpose is tendered. The method adopted is too mischievous. The object is to deceive the Insurance Companies. Should the Tribunal or the Court become a party to such frauds by ignoring forgery and hold that at least one driving licence was genuine?
13. The answer must be 'no'. It was never the intention of the Legislature framing the law. While granting compensation, the Tribunal has to uphold the law. Anybody found to be tinkering with it has to be dealt with a strong hand. Such malpractices cannot and should not be tolerated. The fact remains that the driving licence which respondent No.1 was holding at the time of the fateful accident was a forged document. Merely because the appellant later on came up with another driving licence in his name, does not mean that at the time of the accident, respondent No.1 was holding an effective driving licence.
14. The owner-driver could not avoid his liability by producing another license. The driver was holding a license which was forged. The insurance company should have been granted the right to recover the amount from the owner-driver in the above circumstances."::: Downloaded on - 15/04/2017 20:34:05 :::HCHP 11 FAO (MVA) No. 359 of 2015
It would be noticed that apart from the judgment rendered in Rama Sahu and Arfoon Nisa cases (supra), all the authorities as relied .
upon by respondent No. 3 are not applicable to the facts of the instant case.
18. Now in so far as the judgment rendered in Rama Sahu case (supra) is concerned, the Court without determining the validity of of any of the licences observed that there was a grave doubt as to whether the driver of the offending vehicle was holding a valid rt driving licence or not and allowing the appeal, permitted the Insurance Company to recover the awarded amount from the insured. Thus the ratio laid down in the aforesaid judgment is not at all attracted and applicable to the instant case.
19. Adverting to the judgment rendered in Arfoon Nisa case (supra), the Court did not go into the question of validity of licence and allowed the appeal of the Insurance Company by permitting it the right to recover the amount paid to the claimants from the owner/driver.
20. With due respect and deference, the view taken by the learned Punjab and Haryana High Court is not legally correct because without determining the validity of either of the licences, the Insurance Company could not have been given the right to recover the amount from the owner/driver. Even otherwise the ratio of the aforesaid judgment seems counter to the ratio of the judgments rendered by this Court in NIC Vs. Mast Ram and Harnek Singh (dead) through LRs Vs. Varinder Singh (supra) which judgments, as observed earlier, are binding on this Court.
::: Downloaded on - 15/04/2017 20:34:05 :::HCHP 12 FAO (MVA) No. 359 of 201521. In addition to the aforesaid, it would also be noticed that despite the licence Ex. RW-1/C having come to the notice of the .
Insurance Company on 13.3.2014 when the statement of the appellant was recorded, it took no steps to verify and check the authenticity of this licence. It did not even choose to lead any independent evidence and only tendered the photocopy of the terms of and conditions of the insurance policy Mark-X. That apart, the Insurance Company neither filed cross-objections nor separate rt appeal, questioning the findings rendered by the learned Tribunal below, whereby it came to the conclusion that the licence Ex. RW-
1/C authorized the appellant to drive motorcycle plus LMV.
22. In light of my aforesaid discussion, the award passed by the learned Tribunal in as much as it gives the Insurance Company the right to recover the amount paid to the claimants from the appellant, cannot be sustained and is, therefore, set aside.
Consequently, the appeal is allowed and respondent No. 3 in terms of the insurance policy is directed to indemnify the appellant for the entire liability without having any corresponding right to recover the same from the appellant.
The appeal is allowed in the aforesaid terms, leaving the parties of bear their costs.
(Tarlok Singh Chauhan), Judge.
3rd June, 2016 (KRS) ::: Downloaded on - 15/04/2017 20:34:05 :::HCHP