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2019 Supreme(Raj) 602
IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
Pushpendra Singh Bhati, J.
Baksha Ram and Ors. - Appellants
Vs.
Ladu Singh and Ors. - Respondent
S.B. Civil Misc. Appeal Nos. 626, 632, 745 and 751 of 2002
Decided On : 16-09-2019
For the Appellant : Rajesh Panwar
For the Respondents: J. Gehlot and Jagdish Vyas
Headnote:
Indian Penal Code, 1860 – Sections 279, 337, 338 – Criminal Procedure Code, 1973 – Evidence Act, 1872 – Section 114 – Motor Vehicle Act – Section 2, 3, 10, 14, 15, 19, 20, 21, 22, 23, 24, 163, 166, 149, 168 and 1774 – Accident – Compensation claim – Recovery and Negligence – Learned counsel for Insurance Company Mr. Vyas submits that this was a case of no license as appellant was not having a valid license in between whereas accident happened further submits that pay and recovery principle will not apply as judgment of National Insurance Singh will not cover field – Honble Apex Court has categorically laid down that no license part of judgment shall have no precedent value – Counsel for Singh submits that Ladu Singh being owner was having valid license and thus was not liable for accident further submits that once learned court below could not arrive at a finding that the collusion was head on, therefore, the contributory negligence of motor-cycle riders could not have been denied also submits in his third submission that the principle of pay and recovery will apply and compensation awarded has to be paid by Insurance Company and recovered later – Held, Learned counsel for claimants Baksha Ram and for driver and owner Ladu Singh and Govind Singh and after hearing counsel for Insurance Company this Court finds that the impugned order is correct on its merits issue of accident and issue of raising liability has been decided by Tribunal after taking all evidence on record and does not call for any interference judgments Insurance Company are directly not on the issue of pay and recovery and in these judgments – Apex Court only concluded that liability to pay shall be of driver/owner and the Insurance Company has been absolved judgments cited have dealt with the issue of pay and recovery and the sum and substance of precedent law covering field is that if a driver of the vehicle does not possess a valid license, the insurance company has to be liable to pay and recovery amount from owner of vehicle, which is applicable in present case court has kept into strong consideration the fact that driver of vehicle was having a valid driving license of heavy motor vehicle same was not renewed at the time of accident – Appeals are accordingly disposed.
JUDGMENT :
Pushpendra Singh Bhati, J.
1. All the four appeals are arising out of the same judgment rendered by the Motor Accident Claims Tribunal, Sojat, Pali on 18.4.2002 while dealing with the particular accident which occurred on 11.5.1998 at about 9.45. p.m. on Nimaj Asarlai Road.
2. In the accident one motor-cycle bearing Number RJ 22 M116 was driven by Baksharam and Om Prakash which was struck by a jeep being driven by Ladu Singh bearing number RJ 19 C 814 in which Baksharam and Om Prakash received injuries.
3. The FIR was lodged at Reserve Centre, Jaitaran bearing No. 139/1998 and after investigation, a challan was also filed against Ladu Singh driver under Sections 279, 337 and 338 of IPC.
4. The first CMA No. 626/2002 is by Baksha Ram for enhancement as well as on account of the aspect of the appellant not having any contributory negligence.
5. The Second CMA No. 632/2002 filed by Om Prakash is also on the same lines.
6. The Third CMA No. 745/2002 and fourth CMA No. 751/2002 are filed by Ladu Singh, who is the driver and owner of the jeep for which learned counsel makes submissions of pay and recovery and negligence of the motor-cycle driver.
7. Learned counsel Mr. Rajesh Panwar representing Baksha Ram and Om Prakash submits that the learned court below has rightly arrived at the conclusion in para 12 while deciding the issue Nos. 1 & 5 that there was no contributory negligence on the part of the motor-cycle riders.
8. Counsel for Ladu Singh (owner and driver) Mr. Gehlot submits that Ladu Singh being owner was having valid license and thus, was not liable for the accident. Mr. J. Gehlot further submits that once the learned court below could not arrive at a finding that the collusion was head on, therefore, the contributory negligence of the motor-cycle riders could not have been denied. Mr. Gehlot also submits in his third submission that the principle of pay and recovery will apply and compensation awarded has to be paid by the Insurance Company and recovered later.
9. Learned counsel for the Insurance Company Mr. Vyas submits that this was a case of no license as the appellant was not having a valid license in between 31.12.1997 to 12.5.1998 whereas the accident happened on 11.5.1998. Mr. Vyas further submits that the pay and recovery principle will not apply as the judgment of National Insurance Co. Ltd. Vs. Swaran Singh & Ors. 2004 DNJ (SC) 154 will not cover the field. The Hon'ble Apex Court has categorically laid down that no license part of the judgment shall have no precedent value.
10. Learned counsel for the Insurance Company submits that the letter written by the Tribunal to the RTO was responded by the RTO while stating that Ladu Singh was having a valid driving license for heavy motor vehicle from 28.9.1987 to 27.9.1990 and thereafter from 1.9.1992 to 31.12.1997 and thereafter from 12.5.1998 to 11.5.2001 and lastly from 31.5.2001 to 30.5.2004. He further submits that accident happened on 11.5.1998 when the appellant was having no license as his pre extended license was not renewed. Mr. Vyas has relied upon the judgment of Hon'ble Apex Court in the matter of National Insurance Company Vs. Vidhyadhar Mahariwala & Others reported in (2008) 12 SCC 701, relevant paragraphs are as under:-
4. In the instant case the date of accident was 11.6.2004. The driver's licence was initially valid for the period from 15.12.1997 to 14.12.2000 and thereafter form 29.12.2000 to 14.12.2003. Thereafter, it was again renewed from 16.5.2005 to 15.5.2008. The appellant filed its objections before MACT taking the stand that since the driving licence was not valid on the date of accident it had no liability. MACT turned down the plea. According to it though on the date of accident the driving licence was not valid, since the driver's licence was renewed on 16.5.2005 for further period of three years it cannot be said that during the intervening period the driver was incompetent or disqualified to drive the truck. With reference to Section 114
