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Himachal Pradesh High Court · body

2009 DIGILAW 230 (HP)

Anita Abrol v. Rishi Co-Operative Societies Ltd.

2009-03-30

RAJIV SHARMA

body2009
JUDGMENT (Rajiv Sharma, J.) The Present FAO has been directed against the award passed by the learned Motor Accident Claims Tribunal (II), Mandi in claim petition No. 37 of 1999 decided on 28.9.2004. 2. Brief facts necessary for the adjudication of this FAO are that on 15.5.1998, deceased Kewal Kumar left his native village Kanaid. He was traveling in Maruti van bearing No. DL2-CJ-1834. When it reached at Nanhera Mor, G.T. Road, Ambala at about 1.45 P.M., a bus bearing No. HR-37-2003 came from opposite side and dashed against the van. The van was being driven by the deceased. Sh. Kewal Kumar received multiple injuries and he died in the hospital. The claimants filed a claim petition before the learned Motor Accident Claims Tribunal (II), Mandi seeking compensation of Rs. 12,00,000/-. The claim petition was resisted/contested by the respondents. Respondents No. 1 and 2 denied that the accident occurred due to rash and negligence on the part of respondent No. 2 (driver Sh. Narinder Kumar). The stand of respondent No. 3- Oriental Insurance Company Limited was that the accident has taken place due to rash and negligence on the part of the deceased. Respondent No. 3 has also taken a stand that respondent No. 3 was not having valid and effective driving license at the time of accident. In nutshell, the reply of respondent No. 3 was that it was not liable to indemnify the claimants. Respondents No. 4 and 5 filed separate replies. The learned Motor Accident Claims Tribunal framed the following issues: 1. “Whether the accident took place due to rash and negligent driving of driver of bus No. HR-37-2003? OPP 2. If issue No. 1 is proved in affirmative, whether respondents are liable to pay the compensation as to what amount and from whom? OPP 3. Whether the respondent No. 2 was not having effective and genuine driving licence at the time of accident? OPA 4. Whether there was breach of terms and conditions of Insurance Policy and the bus No. HR-37-2003 was not having R.C. and route permit, if so,its effect? OPR 5. Whether the petition is bad for non-joinder of necessary party? OPR 6. Relief. 3. The learned Motor Accident Claims Tribunal awarded a sum of Rs. 11,16,000/- to the claimants with interest @9% per annum from the date of filing of the petition till its realization. The award was announced on 28.9.2004. OPR 5. Whether the petition is bad for non-joinder of necessary party? OPR 6. Relief. 3. The learned Motor Accident Claims Tribunal awarded a sum of Rs. 11,16,000/- to the claimants with interest @9% per annum from the date of filing of the petition till its realization. The award was announced on 28.9.2004. However, the learned Motor Accident Claims Tribunal has exonerated respondent No. 3 i.e. Oriental Insurance Company. The liability was fastened only on respondent No.1 (owner). 4. Mr. Ashwani Pathak, Advocate has strenuously argued that it was for the Insurance Company i.e. respondent No. 3 to prove breach of policy. He further contended that the Insurance Company has not led any cogent/tangible evidence to establish that respondent No. 2 driver was not holding valid driving licence at the time of accident. He strongly relied upon Narchinva V. Kamat and another v. Alfredo Antonio Doe Martins and others, AIR 1985 SC 1281 and the judgment dated 4.8.2008 rendered by the learned Single Judge of this Court in FAO No. 344 of 2004 titled as Surinder Singh v. Smt. Jai Manti Devi and others. 5. The notices were sent to respondents No. 1 and 2 by the Registry intimating them that the case will be listed for final hearing in the month of May, 2008. Respondent No. 3 is represented by Sh. Deepak Bhasin, Advocate. 6. Mr. Deepak Bhasin, Advocate has strongly relied upon National Insurance Company Limited v. Brij Pal Singh and another, 2003(1) ACC 629. He then submitted that the Insurance Company could not be directed to discharge negative burden with regard to the fact which was within the knowledge of the driver and owner of the vehicle. He has further contended that it was necessary for the owner and the driver who were arrayed as respondents to place the copy of the driving licence on record. 7. I have heard to learned Counsel for the parties and perused the record carefully. 8. Mr. Ashwani pathak, Advocate has drawn the attention of the Court to issue No. 3 framed by the learned Motor Accident Claims Tribunal. The learned Motor Accident Claims Tribunal had answered issue No. 3 in affirmative. It is in these circumstances that respondent No. 3 Company was absolved of its statutory liability. Mr. D.C. Guleria, Advocate has tendered in evidence photocopy of registration certificate Ex. The learned Motor Accident Claims Tribunal had answered issue No. 3 in affirmative. It is in these circumstances that respondent No. 3 Company was absolved of its statutory liability. Mr. D.C. Guleria, Advocate has tendered in evidence photocopy of registration certificate Ex. R-1 and photocopy of Insurance Cover while appearing on behalf of respondents No. 1 and 2. Mr. Rana, who had appeared on behalf of respondents No. 3 and 4 had tendered in evidence copy of Insurance Policy as Ex. RA and closed the evidence. This is the evidence led by respondents No. 1 to 4 before the learned Motor Accident Claims Tribunal. The learned Motor Accident Claims Tribunal has returned a finding that since the owner and the driver have failed to produce the copy of the driving licence, the Insurance Company could not be directed to indemnify the owner. The learned Motor Accident Claims Tribunal has erred in law by shifting the burden to prove whether there was breach of terms of the policy or not upon the owner. It is settled law that it is for the Insurance Company to prove that there was breach of terms of the policy and the driver did not have valid licence. In the present case the Insurance Company has not produced any evidence to prove the breach. The counsel appearing for respondent No. 3 has not filed any application seeking details of the driving licence issued in favour of respondent No. 2. 9. Their Lordships of the Hon’ble Supreme Court in Narchinva V. Kamat and another v. Alfredo Antonio Doe Martins and others, AIR 1985 SC 1281 have held as under: “15. To sum up the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.” 10. It was necessary for the Insurance Company to give notice to the owner or the driver to give the details of the driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.” 10. It was necessary for the Insurance Company to give notice to the owner or the driver to give the details of the driving licence. The Insurance Company has also not moved any application under order 11 rule 12 of the Code of Civil Procedure for production of document. The onus of proving that the driver of the bus did not have the valid licence to drive the vehicle lied on the Insurance Company, because it was the Insurance Company which sought to avoid its liability under the policy on the ground that the terms of the policy had been violated. It was not sufficient for respondent No. 3 company to make assertion that the driver was not holding driving licence without adducing necessary proof and escape its liability under the policy. In the present case the driver was already arrayed as respondent No. 2. The requirement for holding the owner vicariously liable is that the driver was in the employment of the owner. This fact has not been denied by the owner. 11. The learned Motor Accident Claims Tribunal has wrongly exonerated the Insurance Company from the liability on the ground that the claimants have not proved that the driver was holding a valid licence while driving the vehicle at the time of accident. The learned Motor Accident Claims Tribunal has wrongly placed the burden of proof on claimants and respondents No. 1 and 2. The burden in fact lay on the Insurance Company which had set up the plea in its written statement that the driver did not have the valid driving licence. The Presiding Judge of the learned Motor Accident Claims Tribunal could only draw adverse inference against respondents No. 1 and 2 in case it had called upon them to disclose the details of the driving licence. No efforts have been made by the Insurance Company to get the details of the driving licence from the owner or the driver. The Presiding Judge of the learned Motor Accident Claims Tribunal could only draw adverse inference against respondents No. 1 and 2 in case it had called upon them to disclose the details of the driving licence. No efforts have been made by the Insurance Company to get the details of the driving licence from the owner or the driver. The procedure adopted by the Insurance Company in these cases is that the details are sought either by issuing a notice or application under order 11 rule 12 of the Code of Civil Procedure for production of document and thereafter the officers/officials are summoned from the Regional Transport Authority (RTA) to prove that the driver did not have any licence. The other procedure adopted by the Insurance Company is to appoint Investigation Officer and to examine him. The question cannot be decided on the basis of pleadings by applying the doctrine of non-traverse. In the present case the respondent-Company has though pleaded that the driver of the offending vehicle was not possessing a valid driving licence, however, it did not led any evidence at all whether the driver was possessing a valid licence or not. In the present case, it could not be presumed that the bus was being driven by a person not holding proper and valid driving licence. 12. The Court is of the opinion that respondent No. 3 has not discharged its burden by leading cogent legal evidence and the learned Motor Accident Claims Tribunal was wrong in arriving at a finding and in absolving respondent No. 3 company on the ground that respondent No.2 was not holding any valid driving licence. National Insurance Company Limited v. Brij Pal Singh and another, 2003(1) ACC 629 cited by Mr. Deepak Bhasin, Advocate is not applicable in the facts and circumstances of the present case. This judgment has not taken into consideration the definitive law laid down by their Lordships of the Hon’ble Supreme Court in Narchinva V. Kamat and another v. Alfredo Antonio Doe Martins and others, AIR 1985 SC 1281 cited hereinabove. 13. Mr. Ashwani Pathak, Advocate has confined his submission only to the limited question whether respondent No. 3 could be absolved/exonerated from indemnifying the owner or not. 14. No other point has been urged. 15. Accordingly, the FAO is allowed. 13. Mr. Ashwani Pathak, Advocate has confined his submission only to the limited question whether respondent No. 3 could be absolved/exonerated from indemnifying the owner or not. 14. No other point has been urged. 15. Accordingly, the FAO is allowed. The award passed by the learned Tribunal to the extent that the Insurance Company is not liable to pay compensation is set aside and it is held that the Insurance Company-Respondent No.3 is liable to pay compensation to the claimants along with respondent No. 1. No costs. M.R.B. ——————-