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2001 DIGILAW 484 (MP)

New India Assurance Co. Ltd. v. Gulshan

2001-07-10

ARUN MISHRA, BHAWANI SINGH

body2001
Judgment ( 1. ) THIS appeal is directed against the award dated 4. 11. 1996, passed by the Motor Accidents Claims Tribunal, Bhopal, in Claim Case No. 8 of 1994. ( 2. ) SHERU Khan was driver of truck No. MP 14-0795. This truck was loaded with buffaloes. While this truck was going from Sawankund Manasa to Bilaspur at about 10. 30 p. m. , another truck No. MP 05-8786 came from opposite direction and dashed against the truck of Sheru Khan. The truck of Sheru Khan turned turtle and Sheru Khan was crushed under the body of the truck and died on the spot. Police registered a criminal case under Sections 279, 337 and 304-A of the Indian Penal Code against the driver of the truck No. MP O5-8786. Sheru Khan was earning Rs. 3,000 per month. Claimants are his widow, minor son and widowed mother. They all were dependent on the income of the deceased Sheru Khan. They have claimed total compensation of Rs. 7,00,000 from the respondent Nos. 4 and 5 and the appellant jointly and severally, being owner, driver and insurer of the offending truck. ( 3. ) THE respondent Nos. 4 and 5 remained absent and did not contest the claim, while the appellant (insurance company) resisted the claim and denied the allegations. However, the fact that the offending truck was insured with it, has been admitted. It has also been pleaded that the driver of offending truck did not possess valid driving licence thereby committed breach of the terms and conditions of the insurance policy. The plea of contributory negligence has also been set up. ( 4. ) ON the pleadings of the parties, the Claims Tribunal framed six issues and recorded the finding that the accident took place due to rash and negligent driving of truck No. MP 05-8786, resulting in injuries to Sheru Khan, as a result of which he died and that the claimants were entitled to compensation. However, it also came to the conclusion that it was not proved that the driver of the offending vehicle did not possess a valid driving licence. The allegation that Sheru Khan was driving the vehicle rashly and negligently, has been rejected. Consequently, compensation of Rs. 2,08,000 with interest at the rate of 12 per cent per annum from the date of claim petition till payment, has been awarded. The allegation that Sheru Khan was driving the vehicle rashly and negligently, has been rejected. Consequently, compensation of Rs. 2,08,000 with interest at the rate of 12 per cent per annum from the date of claim petition till payment, has been awarded. The appellant insurance company is not satisfied with this award, therefore, it has been challenged through this appeal. ( 5. ) MR. N. S. Ruprah, learned Counsel for the appellant, contended that the liability to pay compensation should not have been thrown on the appellant for the reason that the driver did not possess a valid driving licence at the time of accident. With a view to support this plea, apart for averments in the written statement, the appellant had produced two witnesses, namely, Ashish Bhattacharya, DW 1 and P. V. Chako, DW 2, to prove that the licence set up by the driver was fake. Ashish Bhattacharya, DW 1. surveyor of the insurance company, verified this fact from the office of Motor Licensing Authority, Assam and gave a statement to this effect. P. V. Chako, DW 2. Administrative Officer of the insurance company, produced insurance policy and the claim form in the court. Apart from their evidence, Mr. Ruprah, learned Counsel for the appellant, contended that prayer of the appellant for examining the Licensing Authority, Assam, was rejected by the Claims Tribunal and the Licensing Authority could not be summoned in the court under Order 26, Rule 4 read with Order 16, Rule 19 of the Code of Civil Procedure. Precisely, the submission is that the appellant had done whatever was possible within its power to prove the factum of fake licence, photocopy of which is on the file. Therefore, it should have been held by the Claims Tribunal that driver did not possess valid driving licence. We are not impressed by this submission. ( 6. ) THE Claims Tribunal has held that the factum of driver possessing a fake licence has not been substantiated. The onus to prove that the driver did not possess valid driving licence, is on the appellant. This fact could be proved by production of Motor Licensing Authority, which issued the licence. This has not been done. Prayer of the appellant for examining the Motor Licensing Authority has been rejected by the Claims Tribunal. The onus to prove that the driver did not possess valid driving licence, is on the appellant. This fact could be proved by production of Motor Licensing Authority, which issued the licence. This has not been done. Prayer of the appellant for examining the Motor Licensing Authority has been rejected by the Claims Tribunal. The fact that the licence possessed by the driver was not issued by the Motor Licensing Authority, Assam, cannot be proved by any other method except by the Motor Licensing Authority, Assam. It cannot be proved by the verification certificate of surveyor of the appellant nor by placing certain documents on the file. It appears from cross-examination of Ashish Bhattacharya that he was not sure about what he had seen in the office of Motor Licensing Authority, Assam, when he stated that the licence must have been prepared from somewhere else. It was not renewed from Guwahati. Therefore, this witness does not prove anything. P. V. Chako, DW 2, has produced claim form and insurance policy. The insurance policy does not contain the number of driving licence, but the claim form contains licence No. D/l956/89 possessed by Dhanraj, driver of the offending vehicle. The result, therefore, is that the allegation that the driver did not possess valid driving licence at the time of accident, has remained unsubstantiated. ( 7. ) MR. Ruprah, learned Counsel, drew our attention to the Apex Court decision in New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC) and contended that the matter should be remanded to the Claims Tribunal giving opportunity to the appellant to prove that the driver did not possess a valid driving licence. The submission raised by Mr. Ruprah has no substance. This course could be adopted in case no opportunity had been afforded to the appellant to lead evidence on this question. We have found that the appellant had an opportunity to prove this fact. It availed it, but could not substantiate it. Since there is already evidence on this question, the case for remand is not called for. ( 8. ) CONSEQUENTLY, there is no merit in this appeal and the same is dismissed.