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2011 DIGILAW 2078 (HP)

NATIONAL INSURANCE CO. LTD. v. GURDAI

2011-04-07

DEV DARSHAN SOOD

body2011
JUDGMENT : Dev Darshan Sud, J. This appeal has been preferred by the appellant insurance company against the judgment and award passed by the learned Motor Accidents Claims Tribunal (III), Kangra at Dharamshala awarding a sum of Rs. 1,70,000 for the death of deceased Purshotam Lal who died in the accident on 2.6.2003. 2. The facts of the case are that husband of the petitioner was travelling in the vehicle Tata Sumo bearing registration No. CH 01-T 3514 which was being driven in a rash and negligent manner and which met with an accident, as a result of which he died. The owner and the driver of the vehicle, namely, Shiv Charan Singh and Anil Kumar, were proceeded ex parte and as such did not appear before the trial court. The stand adopted by the insurance company was that driver Anil Kumar was not having a valid and effective driving licence at the time of accident and that owner Shiv Charan Singh had not verified as to whether this person was possessed of a valid driving licence. It was further alleged that the vehicle was being driven in a rash and negligent manner. Permission u/s 170 of the Motor Vehicles Act was granted to the insurance company by an order dated 19.6.2004 to defend the claim petition on merits. 3. Three issues were settled by learned Tribunal, namely, whether the deceased Purshotam Lal died because of the injuries sustained by him in the accident, as alleged; the quantum of compensation; and the third most important issue was whether the driver, i.e., respondent No. 3 was not holding a valid driving licence. Taking into consideration the entirety of the facts and circumstances of the case, the learned court allowed the petition. 4. On the question of the driver possessing a valid driving licence, the appellant relied upon the evidence of RW 1 Kuldeep Singh, an official from the Court of CJM Ropar (Punjab), to the effect that Anil Kumar, driver of the vehicle, was facing trial before the Juvenile Court as he was a minor and his date of birth was 12.4.1987. Prima facie this would have been sufficient for the appellant to escape from liability. But the learned court holds that no document to prove this fact has been placed on the record of the case. Prima facie this would have been sufficient for the appellant to escape from liability. But the learned court holds that no document to prove this fact has been placed on the record of the case. Surely, it was the duty of the insurance company to place some document on record to prove this fact. 5. The learned counsel appearing for the appellant submits that the insurance company had done all that could be done to prove this fact and even summoned the clerk of Bal Bharti School, Sector 45, Chandigarh along with birth record of the driver Anil Kumar and had also summoned Shiv Charan Singh, owner of the vehicle, but neither the record was produced nor the owner appeared in evidence. Learned counsel submits that this fact was itself sufficient to establish and show that the driver was a minor. By an order dated 16.1.2008 the court notices that ample opportunities have been granted to the appellant to produce its evidence but no concrete steps have been taken though a period of five years has elapsed and thus evidence had to be closed and petition taken up for further proceedings. In these circumstances, I hold that ample time had been granted to the appellant herein to produce its evidence and in case evidence was not present it was for the appellant to have produced the evidence and the claimant could not be faulted. 6. Learned Tribunal also considered the evidence of RW 3, ASI Karam Singh who investigated the case and stated that vide Exh. RW2/A which is an order of the court it was mentioned that driver of the vehicle did not possess any valid licence. The court holds that this does not establish the fact that the respondent No. 2 was not possessed of valid driving licence as it does not state so in clear terms. 7. I am in complete agreement with the findings of the learned Tribunal. The best possible evidence, i.e., the record of the Juvenile Court should have been produced and proved on record, but that has not been done. Exh. RW2/A does not in any manner support the case of the appellant and testimony of RW 2 has been rightly rejected by the learned Tribunal. I find from the evidence of RW 2 that the Exh. Exh. RW2/A does not in any manner support the case of the appellant and testimony of RW 2 has been rightly rejected by the learned Tribunal. I find from the evidence of RW 2 that the Exh. RW2/A is not an original but a photocopy placed on record on the testimony that original document has been produced in the criminal court. For these reasons no reliance can be placed on this document. This appeal is accordingly dismissed. No order as to costs.