OM PRAKASH Vs. NEW INDIA ASSURANCE CO LTD

JUDGEMENT

(1.) Aggrieved with the order passed by the learned MACT, the appellant has preferred the appeal under Section 173 of the Motor Vehicles Act, 1988. The appellant is aggrieved with two orders i.e., order/judgment dated 23.10.2003 passed by the Presiding Officer, MACT in Petition No.636/2000 and secondly against the order dated 21.11.2005 passed by the learned MACT dismissing the objections of the appellant under Order 21 Rule 58 of the Code of Civil Procedure. The appellant is the owner of the offending vehicle which was being driven by respondent No.3- Mr.Samud Singh. The main contention raised by the appellant in the present appeal is that although the driving licence, the certified copy of which was seized by the police from the driver Samud Singh after the accident was for driving Light Motor Vehicle, in short referred to as LMV but in fact the driver was already in possession of HTV licence. Counsel for the appellant, therefore, contends that the driver was in possession of proper and valid driving licence i.e. H.T.V. for driving Heavy Transport Vehicle, but due to some inadvertence and negligence, the said HTV licence could not be proved as per the provisions of the Indian Evidence Act. Along with the said appeal, the appellant has also filed an application under Order 41, Rule 27 read with Section 151 CPC seeking permission of this Court to allow the appellant to place on record the original driving licence issued by the competent authority for driving Heavy Transport Vehicle. The ground given by the appellant is the same that due to carelessness and negligence of the earlier counsel, the appellant could not prove the valid driving licence of the driver and during the course of filing objections under Order 21 Rule 58, the appellant had filed the said valid and proper HTV driving licence. The objections filed by the appellant against the execution application filed by the insurance company were dismissed vide order dated 21.11.2005. The operative para of the said order is reproduced as under:-

(2.) The appeal filed by the appellant as well as the application under Order 41 Rule 27 have been jointly taken up for disposal.

(3.) The bone of contention raised by the appellant in the appeal as well as in the application is that the appellant could not prove the HTV licence which was in his power and possession due to the negligence of the counsel, then, appearing for the appellant. It is not in dispute that at the time of seizure by the police, the driver of the offending vehicle has produced the driving driving licence meant for driving LMV(NT) and no HTV licence was found in his possession. To prove this fact that the driver was in possession of LMV licence, the insurance company had produced a witness from the Office of Motor Licencing, Mall Road, Delhi who has proved the verification report of the Motor Licencing Officer of the LMV driving licence of the driver. The certified copy of the seizure memo of the said driving licence has also been produced which shows that the driver was in possession of the said driving licence to drive LMV (NT) and not HTV vehicles.