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Madhya Pradesh High Court · body

2000 DIGILAW 1256 (MP)

Jagdish v. Rajkumar

2000-11-29

R.D.VYAS, SHAMBHOO SINGH

body2000
SINGH J. This appeal is directed by the claimants against the award dated 27.1.98 passed by 1st MACT Mandsaur in Claim Case No. 60/95. The claimant's case was that on 31.1.95 while going on his Hero-Mej-tic alongwith Pannalal as pillion rider, respondent No. 2 came from opposite direction driving truck No. C.H.01/D 5088 belonging to non-applicant No. 1 and insured with respondent No. 3 in rash and negligent manner and dashed against his mopade, as a result of which he sustained injuries and became permanently disabled. He filed claim case seeking compensation of Rs. 7,40,000/-. The respondents resisted the claim and inter alia pleaded that respondent No.2 was not having valid driving licence, therefore, it was not liable to pay compensation. The learned Tribunal on appreciation of evidence held that the accident occurred due to rash and negligent driving of the truck by non-applicant No.2. The Tribunal awarded compensation of Rs. 2,18,000/- with interest at the rate of 12% per annum against non-applicants No. 1 and 2 and exonerated the non-applicant No.3 Insurance Co. holding that at the time of accident non-applicant No.2 was not having valid and effective driving licence. Hence, this appeal by the claimants. Shri Samwatsar, LC for the claimants, submitted his arguments only on the point of exoneration of non-applicant No.3 of its liability to pay compensation. He submitted that the burden of proving that respondent No.2 was not having valid driving licence on the date of accident was on the insurer-non-applicant No.3 and he did not produce any evidence, therefore, the Tribunal committed error in absolving the Insurance Co. On the other hand, Shri Sanjay Sharma, LC for the respondent, supported the impugned award. We considered the arguments advanced by learned counsel for both sides and perused the record. In this case, the non-applicant Insurance Co. did not call the record of driving licence issued by RTA Chandigarh. It simply examined Sushil Kumar (NAW.1) who deposed that he made enquiry on telephone from the Branch of the insurer at Chandigarh whether the non-applicant No.2 was having driving licence. He stated that he was informed that respondents No. 1 and 2 did not give the particulars of the licence. In our opinion, the evidence of Sushil Kumar has no value on the point. The person who supplied information on telephone ought to have been examined. He stated that he was informed that respondents No. 1 and 2 did not give the particulars of the licence. In our opinion, the evidence of Sushil Kumar has no value on the point. The person who supplied information on telephone ought to have been examined. The record of issuing driving licence is kept by the RTA, this record ought to have been called by the insurer and proved whether respondent No.2 was not having driving licence. If it is admitted that the respondents No. 1 and 2 did not give the particulars of the, licence, no adverse inference can be drawn that non-applicant No.2 was not having valid driving licence on the date of accident. In case of Narchinva V. Kamat and another. etc. v. Alfredo Antonio Doe Martins and others AIR 1985 SC 1281 , where inspite of notice of the insurer to the owner and the driver to produce the driving licence, driving licence was not produced, their Lordships of the Supreme Court held that no adverse inference could be drawn against the owner and the driver that the driver was not having valid licence. Their Lordships observed that the burden of proving breach of the terms and conditions of the policy is on the Insurance Co. and it ought to have proved the same. The owner and the driver cannot be directed to produce evidence in support of the case of the insurer. The Insurance Co. should have called the record of RTA of issuing of driving licence and the Apex Court held the Insurance Co. liable to pay compensation. In view of above, as held above, the Insurance Co. failed to prove that non-applicant No. 2 was not having valid driving licence on the date of accident, therefore, the Insurance Co. could not be exonerated from its liability to pay compensation. In our opinion, the learned tribunal committed error in exonerating the Insurance Co. of its liability to pay compensation. In the result, the appeal is partly allowed and it is directed that the non-applicants shall pay amount of compensation i.e. Rs. 2,18,000/- to the claimants with interest at the rate of 12% per annum from the date of filing of claim application as directed by the Tribunal. There shall be no order as to costs.