Archana arora FAO No.507 of 2014 1 2014.01.30 16:15 I am the author of this document IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No.507 of 2014 Date of decision January 27,2014 Rajesh Kumar and another ......Appellants Versus Ramesh Kumar and another .......Respondents CORAM: HON'BLE Mr.JUSTICE K.
KANNAN Present:- Mr.Surinder Dalal, Advocate for the appellants.
Kannan, J (oral).CM No.1570-CII of 2014 For the reasons stated in the application, application is allowed.
Delay in filing the appeal is condoned.
FAO No.507 of 2014 1.
The appeal is at the instance of the driver and owner aggrieved against a direction for provision for pay and recover made available to the insurer.
This was on the basis that the vehicle which was involved in the accident was insured as a transport vehicle and the driver did not have a valid driving license with the transport vehicle endorsement as required under Section 3 of the Motor Vehicles Act.
Learned counsel appearing on behalf of the appellant would state that reasoning of the Tribunal accepting the insurer's plea on the ground that the onus was on the Insurance Company to establish the breach of terms of policy and the breach had not been proved.
Learned counsel would have two contentions in this regard: i) The Vehicle had a tonnage equivalent to Light Motor Vehicle FAO No.507 of 2014 2 therefore the license issued by the District Transport Authority showing that he had a license to drive a Light Motor Vehicle was sufficient to cover the risk and make available the right of indemnity to the insurer.
This argument, in my view, is erroneous, for, a Light Motor Vehicle as defined under the Motor Vehicle's Act on the basis of tonnage of weight will become a transport vehicle the moment it is used for the purpose of transporting goods or passengeRs.They may exist at the same time and therefore it will be wrong to assume that a Light Motor Vehicle cannot be a transport vehicle as well.
The issue has been considered with reference to a three wheeler auto which was a Light Motor Vehicle but which was used for hiring and hence taken as a transport vehicle and in such a situation the Supreme Court had provided for the right of recovery in Oriental Insurance Co.LTD.versus Angad Kol 2009 11 SCC356for the Insurance Company so against the owner.
The counsel has another line of argument to contend that he had also brought on record a driving license from Nagaland that purported to bear an endorsement that he had a valid driving license to drive a Heavy Motor Vehicle and he produced along with it a “No objection certificate' that the driving license issued by Nagaland was genuine.
The Tribunal rejected this document on a reasoning that under the scheme of the Motor Vehicles Act there should be only one driving license issued for a person and if a driving license is issued from Delhi in the year 2008 to the effect that it was an authorization to drive only Light Motor Vehicle for a period of 20 yeaRs.how he had already yet another FAO No.507 of 2014 3 license purported to have been issued from Nagaland in the year 2007.
The driver owner was bound to explain as to how he obtained a fresh license at Delhi when there had been a license issued earlier at Nagaland.
If the license issued at Nagaland had been true, it made unnecessary even an application for license for Delhi.
I will take the action taken by the insurer in eliciting to prove its contention that the driving license issued at Delhi itself was not genuine as adequate and I would believe that the onus to prove shifted to the driver to explain some aspects regarding the issue of license from Nagaland which was suspicious particularly in view of the license issued subsequently from another place.
I will not find any error in the reasoning of the Tribunal to make an intervention.
The award insofar as it casts the liability on the owner/driver and deny to them the right of indemnity for proven act of breach of contract of policy of insurance.
The appeal is dismissed.
KANNAN) JUDGE January 27 , 2014 archana