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2006 DIGILAW 23 (PNJ)

National High School v. Roshni Devi

2006-01-04

HEMANT GUPTA

body2006
Judgment Hemant Gupta, J. 1. The present appeal is directed against the award dated 10.9.2002 delivered by Motor Accident Claims Tribunal, Patiala in respect of motor vehicular accident which occurred on 27.4.2000. In the said accident, one Kuldeep Singh, who was on bicycle, met with an accident with the matador owned by the present appellant. The said vehicle was insured with respondent No. 3. 2. In the claim petition under Section 166 of the Motor Vehicles Act, 1988 , the learned Trial Court awarded a sum of Rs. 55,000/- as compensation along with interest at the rate of 9 per cent per annum from the date of the filing of the claim petition till the date of realisation but the present appellant after returning a finding that the driving licence of the driver of the vehicle has become invalid. 3. The said finding of the Tribunal is under challenge by the appellant in the present appeal When the appeal came up for hearing before this Court on 8.5.2003, the appeal in respect of the claimants was dismissed while recovery by the Insurance Company by the appellant was ordered to be stayed. 4. Learned Counsel for the appellant has vehemently argued that the learned Tribunal has misread the evidence to return finding that the left hand was amputated and further that the said amputation was after the driving licence was issued. It is argued that it is only three fingers of the left hand were amputated from the middle and in the absence of any evidence of the date of amputation, the inference drawn by the learned Tribunal that such amputation was after the licence was issued is not sustainable. It was for the Insurance Company to allege and prove that the driver has become invalid after the issuance of the driving licence. It is submitted that in the absence of any evidence about the timing of amputation, the inference drawn by the learned Tribunal is not legal and sustainable. 5. Learned Counsel for the Insurance Company on the other hand, argued that it was pleaded case of the claimants themselves that one hand of the driver was amputated. Since the allegations in the claim petition was not controverted, the learned Tribunal was right in returning a finding that one hand of the driver was amputated after issuance of driving licence. Learned Counsel for the Insurance Company on the other hand, argued that it was pleaded case of the claimants themselves that one hand of the driver was amputated. Since the allegations in the claim petition was not controverted, the learned Tribunal was right in returning a finding that one hand of the driver was amputated after issuance of driving licence. It was for the insured to prove that the driver was authorised to drive the vehicle on the date of the accident. Since, there is no evidence that the amputation was prior to issuance of the driving licence, the finding recorded by the learned Tribunal cannot be said to be suffering from any patent illegality or material irregularity which may warrant interference in appeal. 6. It is the plea of the Insurance Company that it is not liable to make the payment of compensation as the driver was not holding legal and valid effective driving licence. Since the plea has been raised by the Insurance Company it was for the Insurance Company to prove that the driver was not authorised to drive the vehicle on the date of the accident. A perusal of the statement of RW2 Bhag Singh, clerk from the office of District Transport, Patiala shows that the licence is issued when the doctor gives fitness certificate to a person. The said fitness certificate is issued in Form A-l in terms of Rule 5 of the Central Motor Vehicles Rules 1989 and in terms of Section 9 of the Motor Vehicles Act, 1988. RWl-Paramjit Singh, owner of the offending vehicle when cross-examined has deposed that he is not aware whether the amputation of the fingers of driver was prior to the issuance of the driving licence or afterwards. However, he has categorically deposed that three fingers of the left hand are amputated from the middle each, but such amputation does not make a driver incapable to drive a vehicle. 7. Keeping in view the above evidence, the finding returned by the learned Tribunal that the left hand was amputated is not sustainable in law. Although the claimants have pleaded in the claim petition that the left hand of Charan Singh was amputated but there is no evidence on behalf of the claimants to support such pleadings. 7. Keeping in view the above evidence, the finding returned by the learned Tribunal that the left hand was amputated is not sustainable in law. Although the claimants have pleaded in the claim petition that the left hand of Charan Singh was amputated but there is no evidence on behalf of the claimants to support such pleadings. In the absence of any evidence on behalf of the claimants or of the Insurance Company, the testimony of RW1 Paramjit Singh that it was three fingers of the left hand which were amputated from the middle cannot be disbelieved. The witness was cross-examined not only by the Insurance Company but by the claimants as well. No question was put to him which may throw any doubt on the testimony so made by the witness. There is no evidence on record to show that the amputation of such three fingers was after the issuance of driving licence. Insurance Company has led no evidence to prove that fingers were amputated after the issuance of driving licence and thus, the driver was not authorised to drive a vehicle on the date of accident. In the absence of any evidence, it cannot be presumed that such amputation was after the issuance of driving licence. The onus of proof that the driver was invalid to drive the vehicle was on the Insurance Company. The Insurance Company having failed to discharge such onus, the right given to the Insurance Company to recover such amount cannot be sustained in law. Consequently, the finding recorded by the learned Tribunal to that extent is reversed. 8. Since the finding of the learned Tribunal in respect of right of the insured to recover the amount from the appellant has been set aside, the amount of Rs. 25,000/- deposited by the appellant shall be refunded to him in accordance with law. 9. Thus the findings of the Tribunal on issue No. 3 is set aside and the appeal is allowed with no order as to costs.