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Madhya Pradesh High Court · body

2005 DIGILAW 327 (MP)

Dinesh Kumar v. Radheshyam

2005-03-02

S.L.JAIN

body2005
ORDER S.L. Jain, J. 1. This appeal is directed against the award of Motor Accidents Claims Tribunal, Sagar, in Claim Case No. 5/94 whereby a sum of Rs. 50,000/- was awarded to the respondents No. 1 and 2 by way of compensation for the death of Thakur Prasad who died in the accident arising out of the motor vehicle. 2. Respondents No. 1 and 2 in this appeal are the legal representatives of deceased Thakur Prasad. When deceased was going for morning walk, he was hit by tanker bearing No. CPQ 8158. The allegation is that the tanker was being driven rashly and negligently by Jagdish Prasad (appellant No. 2). Appellant No. 1 Dinesh Kumar is the owner of the offending tanker. It is alleged that the age of the deceased was 70 years at the time of the incident. 3. The Claims Tribunal has come to the conclusion that accident took place when deceased Thakur Prasad was hit by the offending tanker driven rashly and negligently by driver Jagdish Prasad. A compensation of Rs. 50,000/- has been awarded with interest @ 12.5% per annum from the date of filing of the petition against the appellants. The insurance company has been exonerated on the ground that on the date of accident, the driver of the vehicle was not having a valid driving license and thus, there was breach of the conditions of insurance policy. 4. I have heard Shri M.L. Jaiswal, learned senior counsel with Shri Rajmani Mishra, counsel for the appellants and Smt. Amrit Ruprah, counsel for the respondent No. 3. None appeared for the respondent Nos. 1 and 2 at the time of hearing of the appeal and appeal proceeded ex parte against them. 5. Learned senior counsel appearing for the appellants first submitted that the findings of the Tribunal that Jagdish was the driver of the offending tanker cannot be countenanced. The Claims Tribunal recorded this finding on the basis of statements of Nandu (PW-3) and Devidayal (PW-5). 6. Learned senior counsel submitted that Nandu (PW-3) categorically admitted that he cannot say as to who was the driver of the offending vehicle. In the FIR, he mentioned the name of the driver as Jagdish on the information given by the persons who were present at the spot. He himself has no personal knowledge as to who was driving the vehicle. In the FIR, he mentioned the name of the driver as Jagdish on the information given by the persons who were present at the spot. He himself has no personal knowledge as to who was driving the vehicle. Regarding the evidence of Devidayal (PW-5) also learned senior counsel submitted that his evidence is shaky. According to him non-applicant Dinesh Kumar Malaiya, the owner of the vehicle has specifically stated in his evidence before the Tribunal that the vehicle was handed over to Dinesh Kumar who was the driver of the vehicle. He also submits that appellant Jagdish has been examined as a witness who has specifically stated that at the time of accident, the offending tanker was driven by Dinesh Kumar. He was sitting in the tanker along with Dinesh as he had to go to Bhopal. 7. The contention cannot be accepted. Devidayal (PW-5) who is an eyewitness of the incident has specifically stated that appellant Jagdish was the driver of the offending tanker at the time of accident. In this regard, the evidence of Dinesh Kumar, the owner of the vehicle cannot be believed. His evidence is based on the entries made by the Chowkidar in the relevant register. These entries were not made in his presence. Owner Dinesh Kumar Malaiya has also stated that he lodged a report at police station stating therein that the driver of the vehicle was Dinesh Kumar but this report has not been filed or proved by the appellants. The best persons to speak about the fact as to who was driving the vehicle at the relevant time could only be the eye-witnesses of the incident. Devidayal who is the eye-witness of the incident has stated that it was appellant Jagdish who was driving the vehicle and immediately after the incident, he saw Jagdish getting down from the tanker from the driver's side. He also had the occasion to see the photograph of Jagdish which was affixed on his driving license. 8. I have carefully perused the statements of Devidayal and I am of the opinion that his evidence inspires confidence. 9. The presiding officer of the Tribunal who had an opportunity to pursue the demeanor of the witnesses examined before him also believed the evidence of Devidayal. 8. I have carefully perused the statements of Devidayal and I am of the opinion that his evidence inspires confidence. 9. The presiding officer of the Tribunal who had an opportunity to pursue the demeanor of the witnesses examined before him also believed the evidence of Devidayal. The appreciation of the evidence by the Tribunal is proper and I do not consider it appropriate to interfere with the findings of the Tribunal and conquer with the Tribunal that at the time of the accident, the offending tanker was being driven by appellant Jagdish. 10. Learned senior counsel appearing for the appellant next contended that the findings recorded by the Tribunal that appellant No. 2 Jagdish Prasad was not having a valid driving license is not legal and the same is liable to be set aside. The Tribunal has recorded this finding on the basis of certificates purporting to be obtained from Regional Transport Authorities, Sagar and Bhagalpur. Such certificates are not public documents under section 35 of the Evidence Act. Such certificates are not issued under any statutory rules nor are required to be so issued. The documents simply contain a statement about State of affairs in the document of the Regional Transport Office concerned. In the absence of the statements of the persons who have issued the certificates, the documents cannot be said to have been proved. In this regard, Learned Counsel for the appellant relied on National Insurance Company Ltd. vs. Ajay Deshmukh and others, 1998 (1) MPU 542 : 1998 AIHC 5011. 11. Learned senior counsel appearing for the appellant further submitted that if these certificates are kept out of consideration, there is no evidence that the driver was not having a valid driving license. The onus to prove that the driver of the vehicle had no valid driving license and there was breach of conditions of insurance policy lies on the Insurance company. It was for them to prove that the driver had no valid driving license. 12. This contention also is not acceptable. Original driving license was produced for the perusal of the Tribunal and the same was returned to witness Jagdish Yadav with direction that a Xerox copy of the same may be produced but it appears that ultimately the Xerox copy was not produced by the witness as the same is not available in the record. 13. Original driving license was produced for the perusal of the Tribunal and the same was returned to witness Jagdish Yadav with direction that a Xerox copy of the same may be produced but it appears that ultimately the Xerox copy was not produced by the witness as the same is not available in the record. 13. Strict rules of evidence as are known to the Evidence Act, do not apply to the proceedings before the Tribunals. The Evidence Act has no application to inquiries conducted by the Tribunal, even though they may be judicial in character. The law requires that such Tribunal should observe rules of natural justice in the conduct of inquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed by them was not in accordance with that which is followed in a Court of Law. 14. Technical rules of evidence contained in their authorised form in the Evidence Act are applicable only to judicial proceedings in or before a Court but they are not applicable for the proceedings before the Tribunals. Rules like the strict rules of proof of documents are applicable only to judicial proceedings before a court but not to proceedings before a Tribunal. When the original driving license was produced, the Tribunal committed no error in relying on the certificate issued by the Regional Transport Authorities, Sagar and Bhagalpur. These certificates reveal that the endorsement authorizing the driver to drive the heavy motor vehicle was made after the date of the incident. On the date of incident, driver Jagdish was authorised to drive only the light vehicles. As on the date of incident, the driver was not having a valid driving license to drive heavy vehicle like tanker, the findings recorded by the trial Court that there was breach of conditions of insurance policy cannot be interfered with. 15. Learned Counsel for the Insurance Company vehemently submitted that insurers are entitled to show that the vehicle involved in the accident at the material point of time was driven by person who was not duly licensed. Once the defence of the insurance company is established, the Courts are bound to discharge the insurer and fix the liability only on the owner or the driver of the vehicle. Once the defence of the insurance company is established, the Courts are bound to discharge the insurer and fix the liability only on the owner or the driver of the vehicle. Once it is held that insurer has been able to establish the defence, the Tribunal or Court cannot direct the insurance company to pay the award amount to the claimant and in turn recover the same from the owner and driver of the vehicle. 16. The contention cannot be accepted. It is true that in the present case the owner with due diligence could have learnt only on seeing the license of the driver that the same is only with regard to light vehicles and the owner on the ground that despite due diligence he could not learn that the license does not authorize Jagdish to drive a heavy vehicle cannot escape the liability but even in that case the insurance company is liable to pay the award amount to the claimants who in turn will be entitled to recover the same from the owner. 17. In National Insurance Company Ltd. vs. Swaran Singh and others, (2004) 3 SCC 297 , the Apex Court has held that where on adjudication of the claim under the Act the Tribunal arrives at the conclusion that the insurer has satisfactory proved his defence in accordance with law, the tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation or other amount which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim will be enforceable and the money found due to the insurer from the insured will be recoverable in the same manner under section 174 of the Act. 18. While upholding the judgment of the Tribunal, I direct in terms of what has been stated in Baljeet Kaur's case AIR 2004 SC 1340 and Pramod Kumar Agrawal vs. Mushtari Begam, AIR 2004 SC 4360 that the insurer shall pay quantum of compensation fixed by the Tribunal about which there is no dispute raised, to the respondent/claimants within 3 months from the date of the judgment. For the purpose of recovering the same from the owner, the insurer shall not be required to file a suit and may initiate the proceedings before the concerned executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the vehicle i.e. appellant No. 1 shall furnish security for the entire amount which the insurer will pay to the claimants. 19. Offending tanker shall be attached as a part of the security. If necessity arises, the executing Court shall take assistance of the concerned Regional Transport Authority. The executing Court shall pass appropriate orders in accordance with the law as to the manner in which the owner of the vehicle i.e. appellant No. 1 shall make payment to the insurer. In case there is default, it shall be open to the executing Court to realize by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle. 20. The appeal is disposed of accordingly. No cost.