New India Assurance Co. Ltd. vs Walaiti Ram and Others

Deepak Gupta, J.—This appeal u/s 173 of Motor Vehicles Act (herein-after referred to as ''the Act'') is directed against the award of the learned Motor Accidents Claims Tribunal, Hamirpur (for short ''the Tribunal'') in M.A.C. Case No. 65 of 1998 whereby he has awarded compensation of Rs. 1,20,000 to the claimants who are the parents of deceased Suresh Kumar.

Admittedly, Suresh Kumar was the cleaner of truck No. HP- 51 1558 and was aged about 23 years at the time of accident. The defence taken by the insurance company was that the driver did not have a valid driving licence. The learned Claims Tribunal has negatived this contention of the insurance company. The present appeal has been filed by the insurance company.

Mr. K.D. Sood, the learned Counsel appearing on behalf of insurance company contends that the endorsement in driving licence permitting the driver, Shyam Lal to drive a heavy goods vehicle is appar-ently illegal and against law. He further submits that the said endorsement in any event could not have been made prior to 16.4.1998 when the necessary fees was paid and the Registering and Licensing Authority (for short ''R&LA'') has illegally ante-dated the driving licence for extra-neous consideration. He further submits that since on the date of the accident, i.e., 13.4.1998 there was no licence in favour of the driver permitting him to drive a heavy vehicle, the negligence of the owner, Ram Chand, is writ large.

The case was argued for some time on 21.9.2005. After going through the statements of the witnesses it was found that the endorsement made on the driving licence permitting the driver to drive a heavy goods vehicle was apparently illegal since initially the licence had been issued on 13.1.1998 for LMV (non-transport) by the R&LA, Sundernagar. It was apparent from the statement of RW 1, Hans Raj, senior clerk, R&LA, Shimla that the fees with regard to the endorsement had been deposited on 16.4.1998. The licence had been endorsed w.e.f. 7.4.1998. Therefore, this Court had passed the following order on 21.9.2005:

From a perusal of documents placed on record it is apparent that the driving licence was issued in the name of Shyam Lal, son of Uttam Singh by the R&LA, Sarkaghat. This licence was issued for light motor vehicle (non-transport) and was valid from 13.1.1998 to 12.1.2001. Thereafter, on 7.4.1998 this licence was endorsed for heavy goods vehicle w.e.f. 7.4.1998. Section 7 of Motor Vehicles Act reads as follows:

Restrictions on the granting of learner''s licences for cerlain vehicles.-

(1) No person shall be granted a learner''s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.

(2) No person under the age of eighteen years shall be granted a learner''s licence to drive a motor cycle without gear ex-cept with the consent in writing of the person having the care of the person desiring the learner''s licence.''

It is clear that no person can be granted a learner''s licence to drive a transport vehicle unless he has a driving licence to drive light motor vehicle for one year. Therefore, it is obvious that this licence could not have been endorsed for driving a transport vehicle for one year after its issuance. The insurance company has examined Hans Raj, senior clerk from the Registering and Licensing Authority, Shimla. He has stated that the licence was endorsed. He also states that the requisite fees for getting the licence was deposited only on 16.4.98. If the fee was deposited on 16.4.1998 then how could the licence be endorsed w.e.f. 7.4.1998. There appears to be some bungling in the matter.

Before passing any orders which may affect any person it is directed that the Registering and Licensing Authority, Shimla shall appear in person in this Court on 5.10.2005. He shall produce the entire record including the applica-tion filed for making an endorsement, if any, for driving heavy goods vehicle. He shall also produce the record of the learner''s licence, if any, issued before making such an endorsement. The record relating to the driving test, if any, of the applicant shall also be produced. The Registering and Licensing Authority shall also produce the receipt book and all other relevant registers relating to the endorsement for heavy goods vehicle at Sr. No. 1423. The receipt number is 4053 and was issued on 16.4.1998. The present Registering and Licensing Authority shall be present in person with the entire record. He shall also intimate a copy of this order to the officer holding the post of Registering and Licensing Authority, Shimla in April 1998 who shall also remain present in person on the aforesaid date of hearing.

The Registry shall send a copy of this order to the R&LA, Shimla immediately.

In pursuance to the said order the concerned officials were present. The following order was passed on 5.10.2005:

In pursuance to the order of this Court dated 21.9.2005, Rakesh Sharma, who is presently posted as Registering and Licensing Authority, Shimla is present along with dealing assistant Hans Raj. H.S. Thakur presently posted as ADM is also present. He states that he was holding the charge of Registering and Licensing Authority (Urban), but had issued the present licence since thc officer discharging the function of R&LA (Rural) was not available.

I have perused the record before passing any order, it is directed that the dealing assistant along with entire record; espe-cially the receipls of all driving licence applications whereof were received on 7.4.1998 and 16.4.1998 shall be pro-duced on the next date, i.e., 19.10.2005. Rakesh Sharma, the present R&LA need not be present on that date. However, H.S. Thakur shall remain present in person in court on that date. The record after perusal has been returned.

The case was fixed for production of further record on 19.10.2005 and for the presence of H.S. Thakur and on the said date certain records were retained as is apparent from the perusal of the order which is as follows:

In compliance of order dated 5.10.2005, H.S. Thakur, is present in person. The record has been produced. The file containing the applications for issuing the driving licence from 3.4.98 to 25.4.98 and the endorsement from 1.4.1997 to 25.4.1998 from Sr. No. 1 to 1448, cash book w.e.f. 1.4.1998 to 28.4.1998 and also the calendar for the month of April 1998 have been retained in the court so that the matter can be checked up. List on 26.10.2005 for orders.

The matter was heard on 26.10.2005. From the perusal of the record retained by this Court, apparently the application for making endorsement was filed on 7.4.1998. No photographs were filed along with the application as required. No learner licence for driving a transport vehicle as required was filed. In a very cursory manner the dealing assistant made the following note:

May allow to be endorsed for heavy goods vehicle also w.e.f. 7.4.1998. Sub-mitted. Signed 7.4.1998.

Thereafter there is some approval of the licensing authority. Unfortunately for the owner as well as for the concerned officials the receipt with regard to deposit of Rs. 45 on account of the necessary fees is issued on 16.4.1998. Photocopies of the original application and the receipt have been kept on record of the present case. A perusal of the register shows that the entry with regard to this application is at Sr. No. 1423 where it is mentioned that licence No. 9/S/G/98 of Shyam Lal has been presented for endorsement for heavy goods vehicle. In the column relating to deposit of fees, it is mentioned that Rs. 45 were deposited vide receipt No. 4053 on 16.4.1998. Previ-ous entry at Sr. No. 1422 relates to licence No. 23926 of Dharamsala in which Rs. 45 was deposited on 7.4.1998 itself. The next entry at Sr. No. 1424 relates to licence No. 1210 for the endorsement of heavy goods vehicle. In this case the fees of Rs. 45 has been deposited for the receipt No. 4052 on 16.4.1998.

The explanation given by Thakur was that since there were many holidays be-tween 7.4.1998 and 16.4.1998, therefore, the amount could not be deposited in be-tween and though actually the amount for licence may have been received in the of-fice of R&LA (Rural), Shimla on 7.4.1998 the receipts were issued on 16.4.1998. In this regard Thakur also produced before the court official calendar issued by the Government of Himachal Pradesh for the year 1998 in which there were holidays on 8th and 15th April and 13th April is shown as restricted holiday. He has also produced the attendance register of the branch to show that during this period a number of employees were not present. A copy of the relevant portion of the attendance register has also been kept on record of this case. It shows that this attendance register was not being filled up properly and on 13th April though against some officials the entry made is R.H. (probably meaning restricted holiday), with regard to other officials there is no entry. The cash book for the period 1.4.1998 onwards was called for by this Court. This belies the case of the officials that on 13.4.1998 the amounts were not deposited. There are as many as 46 entries on 13.4.1998 wherein people have deposited token tax on 13.4.1998. There are also entries of thirteen persons who have deposited fees for licence, etc. Therefore, the stand of the officials that on 13.4.1998 there was nobody in the office does not appear to be correct. Even on 13.4.1998 seven people had deposited fees for issuance of licence. Be that as it may, when the receipt was admittedly issued on 16.4.1998, there was no question of making the endorsement w.e.f. 7.4.1998.

Furthermore, as noted above, this endorsement has been made without following the provisions of the Act and in total violation of Section 7 of the Act. The endorsement was made without any test and no learner''s licence for driving a transport vehicle was ever issued. The endorsement was made within one year of the issuance of the original licence which is not permissible in law. Apparently, there is much more in the matter, than meets the eyes. What was the reason for the undue haste in endorsing the licence even before the fees had been paid? The accident in question took place on 13.4.1998 when the driver was driving the truck from Chandi-garh to Rampur. The driver could not have obviously taken the licence on that date. The fees had also not been submitted on that date. It is clear that the licence was issued after the accident had occurred and prima facie it appears that the licence was issued for extraneous considerations.

It is thus clear that on the date of accident, i.e., 13.4.1998 the driver, Shyam Lal could not and did not have a driving licence to drive a heavy goods vehicle. In my considered opinion this licence had been got endorsed on a later date and has been ante-dated in connivance with the authority R&LA (Rural), Shimla. Since the driver did not have valid driving licence and his licence was not in existence the owner obviously could not have been shown any licence permitting the driver to drive a heavy goods vehicle. Therefore, it is apparent that the owner was aware that Shyam Lal did not have a valid driving licence and had knowingly handed over the vehicle to a person not having a licence to drive a heavy goods vehicle. In this case the owner did not step into the witness-box to show as to how Shyam Lal was driving the vehicle. Therefore, in the facts and circumstances of the case, it is held that the owner is guilty of breach of the policy inasmuch as he has handed over the heavy goods vehicle to a person not having a licence to drive the same. Therefore, the insurance company cannot be held liable. The appeal filed by the insurance company is allowed and the award of the learned Tribunal insofar as it holds the insurance company liable to pay compensation is set aside and it is held that only respondent Ram Chand, owner of the truck, shall be liable to pay the compensation. Keeping in view the fact that the vehicle was insured and insurance company has already deposited the amount of compensation, it would serve no purpose to drive the unfortunate claimants to another round of litigation. It would be inequitable to ask claimants to return the said amount and proceed against the owner. In view of the judgments passed by the Apex Court in New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., ; National Insurance Co. Ltd. Vs. Baljit Kaur and Others, and New India Assurance Co. Ltd. Vs. Asha Rani and Others, , insurance company shall be entitled to recover this amount along with interest from the owner, respondent No. 4, without filing any separate suit and only by filing execution proceedings before the concern-ed Motor Accidents Claims Tribunal.

Before parting with the case there are certain disturbing facts which this Court cannot ignore. The court cannot be a mute bystander to the nefarious and illegal activities in the office of the R&LAs (Urban and Rural), Shimla. In a numbcr of cases this Court has noticed that driving licences are being issued or renewed in a perfunctory manner without following the provisions of law. Even more disturbing is the fact that in a large number of cases this Court is finding that the R&LAs are acting in a criminal manner and in connivance with the owners/drivers of the vehicles are issuing driving licences or making endorsement thereon after the accident has already occurred. The driving licences are being ante-dated and this amounts to forgery and is a criminal offence.

In Mohi Ram Vs. Surat Ram and Others, this Court had noticed that the fake driving licence was renewed by the R&LA (Urban), Shimla acting hand in glove with owner. The following directions were issued to the Secretary (Transport) to the Government of Himachal Pradesh:

(16) The manner in which the fake driving licence was renewed in this case leaves much to be desired. It is obvious that someone in the office of the Registering and Licensing Authority (Urban), Shimla was hand in glove with appellant. There are a number of cases which have come before this Court in which driving licences are issued or renewed in a negligent manner, actually one can go so far as to say in a criminal manner. Cases have come before this Court where the licence has been renewed in favour of a dead person or endorsement to drive a transport vehicle has been made after the licence holder is dead. One of these cases relates to the Registering and Licensing Authority (Rural), Shimla. It is high time that this practice is stopped.

(17) The issuance or renewal of a driving licence is not a paper formality. This licence permits a person to drive a motor vehicle. The lives of innocent people are put to risk in case the licence is granted without holding a test or complying with the provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder. The Secretary (Transport) is directed to ensure that all the Registering and Licensing Authorities issue and renew the driving licences strictly in accordance with the provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder after testing the applicants and following the requisite procedure. He shall issue necessary directions in this regard to all the Registering and Licensing Authorities in Himachal Pradesh within three weeks of the receipt of this judgment. The Registry shall also send a copy of this judgment to the Secretary (Transport) to the Government of Himachal Pradesh forthwith for due compliance.

(18) The Secretary (Transport), Government of Himachal Pradesh shall file an affidavit of compliance in this Court within 3 weeks of the receipt of the copy of the judgment. All the Registering and Licensing Authorities in Himachal Pradesh shall also file their affidavits stating that they have received the in-structions and that in future the licences shall be issued and renewed strictly in accordance with the provisions of Motor Vehicles Act and the Rules framed thereunder, within three weeks thereafter.

In another case titled Geeta Devi and Another Vs. Sanjeev Chauhan and Another, this Court had observed that H.S. Thakur who is also the officer concerned in the present case, had wrongly endorsed the licence issued for driving the light motor vehicle after the death of driver Ajit Singh. The pertinent observations made in the said case read thus:

(14) Before parting with this case, I must observe that the manner in which the driving licence was endorsed for driving a light transport vehicle much after the death of Ajit Singh shows that somebody in the office of the R&LA (Rural), Shimla was hand in glove with somebody who wanted to get endorsement for transport vehicle so that the liability could be fastened on insurance company. Therefore, I direct that the Chief Secretary to the Government of Himachal Pradesh shall get an inquiry conducted into the manner in which the R&LA, Sunni, Shimla endorsed the driving licence of driver Ajit Singh after his death. After identifying the delinquent officials appropriate disciplinary action shall be taken against the persons who are found wanting in their duty and have misconducted themselves. This inquiry and the disciplinary proceedings should be conducted within a period of six months from today and thereafter report be sent to this Court on the action taken. List the matter after 6 months for this purpose. The Registry shall send a copy of this judgment to the Chief Secretary to the Government of Himachal Pradesh for compliance of the directions given above. One copy of this judgment shall also be sent to the office of the learned Advocate General for onward transmission.

In the course of just about 2 months this is the second or third case involving the same officer, H.S. Thakur which has come to my notice wherein prima facie the documents have been forged with the intention of giving benefit to the owner of the vehicle and with the clear intention that in case of any claim petition being filed the insurance company is made liable to pay the compensation. Senior officers, like H.S. Thakur, are not expected to behave in such a manner. Therefore, in my view, there is prima facie case for sending the matter for investigation by the police as to in how many cases H.S. Thakur, pres-ently A.D.M., Shimla and at the relevant time holding the office of R&LA (Urban and Rural), Shimla was involved where the licences have been issued or endorsed illegally. In the present case, it is clear that though the licence fee was deposited only on 16.4.1998, the licence has been illegally and wrongly endorsed w.e.f. 7.4.1998. It is also clear that the endorsement has been made without following the provisions of Section 7 and other provisions of the Act. Therefore, I direct that Additional Director General of Police (Vigilance) shall get an inquiry conducted in the matter. The inquiry shall be got conducted by an officer not below the rank of Superintendent of Police. The investigating officer shall carry out detailed investigation into the manner in which the licence of Shyam Lal was endorsed for heavy goods vehicle. He will also investigate the matter relating to the fake licence in Mohi Ram Vs. Surat Ram and Others, as well as licence involved in Geeta Devi and Another Vs. Sanjeev Chauhan and Another, He will also conduct a general inquiry as to whether there are any other licences illegally issued without following the provisions of the Motor Vehicles Act and the Rules framed thereunder and especially licences issued with retrospective effect, like in the present case. He shall also fix the liability of the concerned officials including the R&LA and in case he finds that the investigation prima facie discloses the commission of a criminal offence and feels that case for launching criminal proceeding is made out, then he shall take further necessary action to obtain sanction of the appropriate au-thority to launch criminal action. He shall also send a copy of the investigation report to the Chief Secretary to the Government of Himachal Pradesh who shall take appropriate disciplinary proceedings against all the delinquent officials.

It is further directed that the police should conduct and conclude the inquiry within a period of 3 months from today and thereafter report of the action taken and recommendations made shall be filed in this Court along with personal affidavit of the Additional Director General of Police (Vigilance) on or before 28.2.2006. In case it is decided to initiate criminal proceedings the government shall consider the case for grant of sanction within one month. The disciplinary proceedings shall be completed within six months from today and the Chief Secretary to the Government of Himachal Pradesh shall file his personal affidavit with regard to the action taken in the disciplinary proceedings on or before 31.5.2006. The Registry shall send a copy of this judgment to the Chief Secretary and the Additional Director General of Police (Vigilance) for necessary compliance. A copy shall also be sent to the office of the learned Advocate General for onward transmission.

The appeal is disposed of in the aforesaid terms. However, the matter be listed on 1.3.2006 to consider the report and affidavit of the Additional Director General of Police (Vigilance).