Research › Search › Judgment

Andhra High Court · body

2008 DIGILAW 465 (AP)

National Insurance Company v. Tatoji Varalakshmi

2008-07-07

C.Y.SOMAYAJULU

body2008
JUDGEMENT Respondents 1 to 6 who are the legal representatives of Yadagiri (the deceased) filed a claim petition under section 166 of the Motor Vehicles Act, 1988 (the Act) seeking compensation of Rs.3,00,000/- from the 7th respondent and the appellant alleging that on 18.02.1996 when the deceased was proceeding on his scooter, a van belonging to the 7th respondent and insured with the appellant, being driven in a rash and negligent manner, dashed against the scooter being driven by the deceased resulting in the death of the deceased who was earning Rs.4,000/- per month as goldsmith. Seventh respondent chose to remain ex parte. Appellant filed its counter inter alia contending that it is not liable to pay any compensation inasmuch as the driver of the offending vehicle was not having a valid driving licence. 2. On their behalf respondents 1 to 6 examined two witnesses as P.Ws.1 and 2 and marked Exs.A.1 to A.4. one witness was examined as R.W.1 on behalf of the appellant but no documentary evidence was adduced on its behalf. The Tribunal held that the accident occurred due to the rash and negligent driving of the driver of the van belonging to the 7th respondent and passed an award for Rs.1,25,800/- in favour of respondents 1 to 6 against the 7th respondent and the appellant repelling the contention of the appellant that it is not liable to pay the compensation payable to the claimants. Hence this appeal by the insurer of the vehicle that caused the accident. 3. The point for consideration is whether the appellant is not liable to pay the compensation payable to respondents 1 to 6? 4. The contention of the learned counsel for the appellant is that inasmuch as Ex.A.2 the charge sheet filed by the police, clearly establishes that the driver of the offending vehicle was charge sheeted for the offence under sections 304-A, 338 and 337 IPC and Sections 3 and 181 of the Act, it is clear that the driver of the offending vehicle was not having a valid driving licence at the time of accident and so in view of the ratio in National Insurance Co. Vs. Swaran Singh1 the appellant is not liable to pay the compensation payable to the claimants. Vs. Swaran Singh1 the appellant is not liable to pay the compensation payable to the claimants. The contention of the learned counsel for the respondents 1 to 6 is that inasmuch as charge sheet is not a piece of evidence and as the appellant did not adduce any evidence to show that the driver of the offending vehicle was not having licence or a valid driving licence at the time of accident, the award passed by the tribunal needs no interference by this Court. 5. It is well known that burden to establish the grounds on which it wants to avoid its liability is on the insurer. Therefore, it is for the appellant to establish that the driver of the offending vehicle was not having a licence or valid driving licence at the time of the accident, as the burden of proof to avoid its liability is on the appellant. As rightly contended by the learned counsel for respondents 1 to 6 merely basing on the averments in the charge sheet filed by the police against the driver of the offending vehicle, it cannot be said that the driver was not having a licence or a valid driving licence at the time of accident. Similarly merely on the basis of the oral evidence of R.W.1, it cannot be said that the driver of the offending vehicle was not having a licence or a valid driving licence at the time of the accident. In order to establish that the driver of the offending vehicle was not having a licence or a valid driving licence, the appellant should have examined the investigating officer or should have taken steps for production of the record from the Road Transport Authority. Only in cases where the insurer is able to establish by admissible and satisfactory evidence, that the driver of an offending vehicle was not having a licence or a valid driving licence at the time of accident, would the ratio in Swaran Singh case (1 supra) come to its rescue. Only in cases where the insurer is able to establish by admissible and satisfactory evidence, that the driver of an offending vehicle was not having a licence or a valid driving licence at the time of accident, would the ratio in Swaran Singh case (1 supra) come to its rescue. In the absence of any documentary or admissible evidence in the shape of record from the Road Transport Authority or the investigating officer, merely on the basis of the averments in the charge sheet, it cannot be held that the driver of the offending vehicle was not having a driving licence or a valid driving licence at the time of accident because the charge sheet by itself does not prove the averments made therein and there must be evidence to establish those averments. So the finding of the Tribunal that inasmuch as the appellant failed to establish that the driver of the offending vehicle was not having a valid driving licence at the time of accident it also is liable to pay the compensation payable to respondents 1 to 6 needs no interference by this Court. The point is answered accordingly. 6. In the result, the appeal is dismissed. No order as to costs.