High Court · 2012

Heard Mr. B. Kalita, learned counsel appearing for the appellants as well as Ms. R.D. Mozumdar, learned counsel appearing for respondent No. 5. There is no repr esentation from the other respondents despite notice being received. By this appeal filed under Section 173 of the Motor Vehicles Act, 1988 the Judgm ent and Award dated 10.03.2003 as passed by the Motor Accident Claims Tribunal, Nalbari in MAC Case No. 94/99 is put under challenge. The learned counsel for the appellant submits that initially the Judgment & Awar d was passed on 14.9.2000 by the Motor Accident Claims Tribunal, Nalbari directi ng a sum of Rs. 1,99,980/- to be paid as compensation to the claimant within 45 days from the date of the judgment and award failing which an interest at the ra te of 12.5 percent per annum would be charged from the date of filing of the cla im petition till the date of realisation. Thereafter an appeal was carried out in this Court in MAC App. No. 108/2000 and the same was disposed by the Lok Adalat, of this Court on 16.03.2002 by dint of a settlement as arrived among the owner, the driver and the Insurance Company. T he Lok Adalat allowed the parties to adduce fresh additional evidences on the po int whether at the time of accident the driver of the offending vehicle had vali d M.M.V or H.M.V. Licence. Accordingly, the earlier judgment and award was made absolute so far the quantum of compensation is concerned. Pursuant to the direct ion of the Lok Adalat dated 16.03.2002, the learned Tribunal resumed the further inquiry on reference and thereafter analysed the issue at paragraphs 13, 14, 15 , 16 & 17 of the impugned judgment. Evidence of DW2 has been found to be unrelia ble in view of the conflicting, evidence of DW1, the insurance investigator. The refore the Tribunal held that the driver had no valid licence of driving the hea vy vehicle on the date of the accident. For this purpose, paragraph 13 & 14 are excerpted hereunder: (cid:28)13. D.W. 2 is Jatin Kalita who was examined after the case was ramanded from th e High Court, by the Opposite Parties who is an L.D. Asstt. in the O/O the D.T.O . Nalbari who deposed that the has produced the Register of the office of the D. T.O. , Nalbari for the year 1998 as he was asked by Summons to appear from the s ide of owner. Ext. A is the said Register and Ext. A(1) is the relevant page in the Register according to which the driver had an L.M.V. Licence issued by the D .T.O. Kamrup which was issued in the year 1991. The driver applied for making en try of his licence in the office and an entry was made in the relevant Register. Ext. (A) 2 and Ext. A(3) are the relevant entries. From the Ext. A(3) it is see n that, the licence was renewed and authorised to drive H.M.V. i/c P.S.V. on 24. 08.98. Ext. A(4) is the signature of the D.T.O. Tarun Das and the licence was up to 23.08.2001. 14. It is seen that, the accident took place on 01.02.99 and the driver of the o ffending Vehicle converted his Driving Licence from L.M.V. to H.M.V. on 24.09.98 . As per Ext. A(3), the Driver who filed his Written Statement on 22.07.99 in th e claim case did not mention his driving licence number, but simply stated that, he had a valid and proper driving licence on the date of accident. (cid:29) DW2 being an employee of DTO, Nalbari produced and got the licence. Register ma intained by the DTO, Nalbari and the relevant page and the entry admitted as Ext A, Ext. A(2) and Ext. A(3) respectively. From the Ext. A(3) it is evident that the licence was renewed and the driver was authorised to drive H.M.V. i/c P.S.V. on 24.08.98. Ext. A(4) is the signature of the D.T.O. namely, Tarun Das and the licence was made valid upto 23.08.2001. Ms. R.D. Mozumdar, learned counsel submits that the number of driving licence as revealing from the claim-petition is different from the number as apparent in t he Ext.A(3). In the claim petition, the number of the driving licence as given b y the claimants is DL No. 82/NB/97 and the same was inserted below the descript ion of the driver in the Cause Title. Ms Mozumdar, learned counsel for the insur er- respondent submits that the DW2 did not denote the entries in regard to the Driving Licence. Consequent upon the provisions of Section 6 of Motor Vehicle A Driving Licence bearing No. F3306/MV/98. The certificate of the policy. Certificate of fitness of the Vehicle No. AS 14/2857. Temporary permit. A copy of the notice of the insurance investigator dated 15.6.1999 in co ct, 1988 no person is allowed to retain two driving licences in the same time. E vidence of DW2 therefore requires fresh examination. It is available from the re cord that the owner had submitted the following documents to the learned tribuna l alongwith the written objection. 1. 2. 3. 4. nnection with MS 98/99 and 5. The owner and the driver have separately filed the written statement. In the wri tten statement, the owner has stated that the vehicle was being driven by the dr iver with valid and proper driving licence. However, he has not disclosed any driving licence number in the written statemen t. Similarly the driver in paragraph 5 of his written statement averred that he was driving vehicle with proper driving licence. However, no number was given in the statement. On the other hand no specific averment is found in the written s tatement of the insurance company on the basis of the investigation report as pr epared by the DW1. Only statement that is found in their written statement is extracted here under : (cid:28)8) That the registration certificate, road permit and other documents of the al leged to have been involved in the alleged accident and the driving licence of t he driver of the same vehicle must have to be produced in the Court and prove th e same in the court to be in order and genuine otherwise it will be presumed tha t these are not in proper order and in such eventurity the Opp. Party will not b e bound to indemnify the award passed if any. (cid:29) On the basis of the investigation report what has been submitted by the learned counsel for the insurance company - respondent is not found in the written state ment. The insurance investigator abruptly came to the tribunal as DW1 and stated that he visited the DTO’s Office as per the direction of the authority in the U nited India Insurance Company. He stated that D.T.O., Nalbari issued a report Ex t. Ka is the said report, Ext. Ka(1) is the signature of the DTO. Ext. Kha is th e insurance investigator’s report. Ext. ka(1) is his signature. The Ext. ka is n ot at all the D.T.O’s report. It is a letter written by the insurance investigat or to the D.T.O. to allow him for verifying documents and Ext. kha is his repor t after the purported verification. The endorsement that has been made on the Ex t. kha by the DTO is for different purpose. The insurance Investigator focussed that the DL No. 82/NB/97 was issued by DTO, Nalbari authorising the driver to dr ive only light motor vehicle and the licence was valid up to 12.01.2012. On the basis of this, the Tribunal has discarded the evidence of DW2. DW2 is the repres entative of the District Transport Office, Nalbari and he produced the original register of the driving licence where it is found that the driving licence of Md . Mainul Haque, the driver, having No. F3306/MV/98 was issued on 24.8.1998. Vali dity of that licence remained till 23.8.2001. No cross-examination is there to b ring out why there was two driving licences’ number. The question which inevitably pops up is that whether the D.T.O’s endorsement wa s admitted in the evident legally and rightly or not. The answer must be in the negative. Notwithstanding this, the tribunal relied that piece of evidence. At t he instance of the owner, the register of licence was produced and exhibited. It is apparent that the driver, Mainul Haque was issued with the Heavy Motor Vehic le licence much prior to the accident and on the day of accident the same was va lid. It is surprising that the learned Tribunal discarded the original register and its entries to rely a secondary evidence viz. the insurance investigator’s r eport. It has been legally established in the evidence that the driver had got t he licence for driving the heavy vehicle. The insurance company did not produce the authenticated copy of licence having No. DL892/NB/90 or its entries in the r egister. Ms. R.D. Mozumdar, also submits that even in Accident Information Repor t (AIR) filed in the Tribunal, number of the driving licence was not what has be en appearing from the Register of Licences (Ext-A). From the primary evidence it evinces without ambiguity that the driver Mainul Haque was having a driving lic ence (HMV) at the time of the accident and as such the learned Tribunal’s findin g in this regards is liable to be interfered. Accordingly, the impugned judgment is interfered with and set aside. In view of this, the insurer is under obligat ion to pay the entire compensation within a period of 2 (two) months from today with interest in the Tribunal. The LCRs be returned forthwith. The owner-appellant be allowed to take refund of the statuary deposit from the registry. For reasons as stated, the appeal stands allowed. However, no order as to costs.