Point of Law : Motor Accident Claims - Licence - Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66 - Said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers.

JUDGEMENT :

1. This is an appeal under Section 173 of the Motor Vehicles Act praying for setting aside the judgment and award dated 12.10.2018 passed by the Motor Accident Claims Tribunal, Srinagar (for short, ‘Tribunal’)

The Tribunal by virtue of the award impugned, allowed an amount of Rs. 6,98,500/- with 6.5% per annum in favour of the petitioners from the date of the presentation of the claim petition till realization.

2. The main ground of challenge in the present appeal is that since the driver of the offending vehicle did not have an effective and valid licence, therefore, no liability could be fastened on the insurance company.

3. In its defence, the insurance company took two pleas; firstly, it was stated that the driver of the offending vehicle was not holding a valid driving licence at the time of the alleged accident and secondly, it was generally stated that the petitioners be put to strict proof regarding the vehicular documents like Registration Certificate, Route Permit, Fitness Certificate and other vehicular documents.

4. On a perusal of the award impugned, it is seen that issue No. 2 was framed by the Tribunal, which reads as under:

“Whether the owner of the offending vehicle i.e., respondent No. 2 had permitted the driver of the offending vehicle i.e., respondent No. 1 to ply the offending vehicle without having a valid and effective driving licence thereby committed breach of policy conditions, if so, what would be its effect on the claim petition?”

5. The insurance company in support of their defence examined RW-Gulzar Ahmed Wani, Administrative Officer, who deposed that on receipt of the summon, the company had deputed an investigator, who after investigation found that although the offending vehicle was insured at the time of the accident, the conditions of the route permit were found breached. He has also stated that the driving licence of the driver was fake. On cross-examination, however, the witness deposed that the offending vehicle was driven by one Asif Ahmed Dar s/o Abdul Gani Dar R/o Hajan and that the driving licence of the said driver was got verified from ARTO, Poonch. The said witness, however, further stated in his cross-examination that he had no information or knowledge whether the report of the investigation by the investigator was placed before the Tribunal or not.

6. The second witness examined by the insurance company was RW-Maroof Ahmed, Statistical Assistant, ARTO Poonch, who deposed that he had brought the record pertaining to driving licence No. 3511/MVD/P dated 31.3.2008 with him, which was issued in favour of one Asif Ahmed S/o Abdul Gani Dar R/o Haveli, Poonch and that he was authorized to drive the light motor vehicle and motor cycle with gear. The said witness also deposed that the said licence bears a PSV endorsement for plying heavy vehicles. In cross-examination, the said witness deposed that the original driving licence had not been shown to him by the insurance company and that he cannot say about the entries recorded in the original driving licence.

7. Based upon the testimony of the aforementioned witness, the issue No. 2 was decided against the respondent-insurance company by holding that the driving licence belonged to the driver Asif Ahmed Dar and that it was valid and effective w.e.f., 31.3.2008 to 30.3.2013 and was, thus, valid even on the date of accident on 30.12.2009.

With regard to the route permit, the Tribunal held that although there was a photocopy on record but the same was not proved in evidence and, therefore, verbal version of the investigator as contained in the testimony of RW-Gulzar Ahmed Wani that the vehicle in question was being plied contrary to the conditions of route permit was nothing but hear say.

8. Learned senior counsel appearing for the appellant, Mr. Kawoosa stated that the Tribunal had committed an error in law in placing the onus of proof with regard to the route permit on the insurance company when the same ought to have been proved by the ow