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2001 DIGILAW 407 (PNJ)

Karam Singh v. Balwinder Kaur

2001-04-04

V.S.AGGARWAL

body2001
JudgmentJudgment V. S. Aggarwal, J. 1. The present appeal has been preferred by one Karam Singh, hereinafter described as the appellant directed against the award of the Motor accidents Claims Tribunal, Ludhiana, dated 3.9.1999. By virtue of the impugned award, the learned Tribunal had awarded compensation of Rs.1,00,000 in favour of the claimants Balwinder Kaur and Bachit-tar Singh (respondent Nos.1 and 2 respectively in the present appeal) with interest at the rate of 12 per cent per annum from the date of the claim petition till payment is made. 2. The facts relevant in this case are that claimant-respondent Nos.1 and 2 had filed a petition under sec. 166 of the motor Vehicles Act (for short the Act)asserting that Gurpal Singh died in the road accident on 21.11.1994. The deceased was going on his bicycle to village Daad for purchasing the goods. When he reached near poultry farm, a truck bearing No. PAT 3204 driven by Balwinder Singh respondent came from behind. It was being driven in a rash and negligent manner and no horn was blown. It struck against the deceased who was crushed and died at the spot. The driver has not been able to control the truck because of high speed. The witness to the occurrence was Joginder singh s/o Hardit Singh who was behind the deceased at that time. It is he who got recorded the first information report. The deceased was 13 years of age at the time of his death and was stated to be earning rs.600 per month. 3. The appellant is owner of the truck and along with the driver had filed a joint written statement. It was denied that the deceased was 13 years of age and was earning anything. Plea was raised that the truck was insured with National Insurance co. Ltd. The liability to pay compensation was denied. It was denied that the truck referred to was involved in the accident. 4. National Insurance Co. Ltd. filed a separate written statement and asserted that the deceased was not earning anything. The liability to pay compensation was denied alleging that the driver of the said truck was not possessing any valid driving licence. 5. The learned Tribunal had framed the issues and after recording the evidence had concluded that the driver of the truck referred to above was driving the same in a rash and negligent manner. The liability to pay compensation was denied alleging that the driver of the said truck was not possessing any valid driving licence. 5. The learned Tribunal had framed the issues and after recording the evidence had concluded that the driver of the truck referred to above was driving the same in a rash and negligent manner. It was further concluded that he did not have a valid driving licence and, therefore, the liability of the insurance company to pay compensation was denied. The compensation was fixed at Rs.1,00,000 keeping in view the age of the deceased and that he was earning rs.600 per month. 6. During the course of arguments, learned counsel for the appellant urged that the insurance company was also to be made liable to pay compensation because it had not been established that the driver was not holding a valid driving licence. 7. In order to appreciate the said controversy, reference can well be made to the reasoning of the learned Tribunal. The learned Tribunal had referred to the fact that verification Exh. R-3 had been produced regarding the driving licence and it was verified by the Transport Office of amritsar in terms that the driving licence had not been issued by the Transport Office at Amritsar. 8. The said reasoning has been assailed on the ground that the said verification could not be received in evidence in the absence of the witness having been produced from the said office with the relevant register. 9. So far as this contention is concern-ed, indeed, it cannot be ignored. The fact as to whether the driving licence is valid or not can only be proved from proper evidence rather than from verification report. After all, necessary evidence must be produced and the witness subjected to cross-examination. The report ipso facto cannot be received into evidence. 10. In this connection, reference can well be made to the decision of Division bench of Madhya Pradesh High Court in the case of New India Assurance Co. Ltd. V/s. Vidya Bai, 1998 ACJ 768 (MP ). When a similar plea was raised in the cited case, it was held as under: ". . . In the case in hand, the insurer has not established the plea by leading evidence or by examining the Regional transport Officer or any authority that satya Prakash was not issued any licence for driving heavy motor vehicle. When a similar plea was raised in the cited case, it was held as under: ". . . In the case in hand, the insurer has not established the plea by leading evidence or by examining the Regional transport Officer or any authority that satya Prakash was not issued any licence for driving heavy motor vehicle. Even the surveyor who obtained the remark on his application was not examined. Besides to examine the genuineness of the driving licence this court afforded opportunity to the insurance company to obtain certificate from the regional Transport Office, Alwar, in relation to the issue of the licence so as to remove the doubt in relation to the validity of the licence No.3201/alwar, which was valid up to 3.6.1992 and was got renewed for a further period up to 12.6.1995. But even after opportunity, no such certificate was issued for considering the defence. In the circumstances, in the absence of record from the Transport Authority indicating that the driver had no licence at the relevant time, the insurer cannot escape from its liability to satisfy the award. " 11. A Division Bench of this court in the case of Oriental Insurance Co. Ltd. V/s. Dalbir Singh, 1998 ACJ 1418 (Pandh), when such a witness was not produced with the register and the entry thereto, it was held that it cannot be concluded that the licence was not properly issued. In para 5 of the judgment, this court concluded as under: "in our opinion, there is no reason to disturb the finding recorded by learned single Judge. The burden to establish that the licence Exh. P-10 was forged squarely lay upon the appellant and as it failed to adduce cogent evidence to discharge that burden, the learned single judge rightly held it liable to pay compensation along with the driver. " 12. Yet another Division Bench of this court in the case of National Insurance Co. Ltd. V/s. Santosh, 1999 ACJ 1262 (Pandh), was again determining the same controversy. The Licensing Authority witness was not examined to prove the report. It was held that in the absence of the same, it could not be inferred that there was no valid licence that had been issued. The findings are as under: "in other words, it becomes necessary that documents have to be proved in accordance with law. The Licensing Authority witness was not examined to prove the report. It was held that in the absence of the same, it could not be inferred that there was no valid licence that had been issued. The findings are as under: "in other words, it becomes necessary that documents have to be proved in accordance with law. Mere production of a report/certificate from Motor Licensing Authority does not prove the document Exh. R-4. No witness as already pointed out above from the Licensing authority had been examined. Only he could produce the record and on basis of that can make the statement in court. There could be no cross-examination in the absence of such a witness having been examined in court. In that view of the. matter, therefore, Exh. R-4 could not be read in evidence. It was, therefore, not established that Exh. R-1 was not a valid driving licence. The first submission, therefore, must fail. " 13. Identical is the position herein. Since the burden of proof lay heavily on the insurance company and it had failed to discharge the same, it could not be held that the driver was not holding the valid licence. The findings to that effect are, therefore, set aside. 14. During the course of arguments, no other plea was raised. 15. For these reasons, the appeal as such is allowed in part. It is held that along with the appellant, the driver of the vehicle (Balwinder Singh respondent) and the national Insurance Co. Ltd. would also be liable to pay compensation with interest as awarded by the learned Tribunal. Appeal partly allowed.