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2014 DIGILAW 866 (RAJ)

New India Assurance Co. Ltd. v. Jamni

2014-04-07

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal has been preferred by the appellant Insurance Company against the judgment cum award dated 25.10.2000 passed by the learned Motor Accident Claims Tribunal, Gulabpura District Bhilwara in Motor Accident Claims Case No. 61/2000 (10/99) (140/95) whereby total compensation of Rs. 2,41,000/- was awarded to the respondents No. 1, 2 and 3, the claimants in relation to the death of one Shri Gajanand Purohit in a road accident which occurred on 3.5.1995. 2. As per the averments set out in the claim petition, the deceased was going on his side of the road on a cycle on the fateful day. A tanker bearing registration No. R) 26 6G-0068, owned by the respondent No. 5, M/s. Progressive Engineering Company, Bisalpur, driven by the respondent No. 4, Shri M.D. Bashir and insured by the appellant, was driven on the wrong side of the road. On seeing the bicycle, the tanker driver who was going on the wrong side of the road tried to avoid it and as a result, the tanker overturned and, the deceased got crushed under it and expired at the spot. The claimants filed a claim application praying for a total compensation of Rs. 12,21,500/-. 3. The learned Tribunal framed the usual issues regarding the rash and negligent driving of the tanker by its driver being the cause of the accident, the entitlement of the claimants to receive compensation, the defence raised by the Insurance Company regarding the tanker driver not having a valid and effective licence to drive the tanker and the contributory negligence of the deceased himself being the cause of the accident. 4. The claimants examined one witness in support of the claim. The respondent Insurance Company and the other non-claimants opted not to lead any evidence in counter. During the course of the trial, the Counsel appearing for the Insurance Company filed an application on 25.10.1999 raising an objection that the driving licence, Ex.-6, held by the tanker driver was fake and fabricated. The Insurance Company requested the Tribunal to summon and examine the concerned Officer from the Licensing Authority at Hyderabad to prove this assertion. The witness was summoned by accepting this prayer. However, when the witness did not turn up despite number of opportunities, the Tribunal closed the evidence. The Insurance Company requested the Tribunal to summon and examine the concerned Officer from the Licensing Authority at Hyderabad to prove this assertion. The witness was summoned by accepting this prayer. However, when the witness did not turn up despite number of opportunities, the Tribunal closed the evidence. Ultimately the claim was accepted partly by deciding all the issues in favour of the claimants and against the defendants. The defences raised by the appellant Insurance Company including the objection of fake licence were discarded and it was held jointly and severally liable along with the owner and driver of the offending vehicle to satisfy the award. It is against the said direction holding the Insurance Company jointly and severally responsible to indemnify the award. The appellant Insurance Company has approached this Court in appeal. 5. Shri Anil Bachhawat, learned Counsel appearing for the appellant Insurance Company vehemently contended that the . approach of the learned Tribunal in closing the evidence of the appellant Insurance Company, after once issuing summons to the witness of the concerned Licensing Authority was absolutely unjust and illegal. He urged that the Insurance Company was not provided appropriate opportunity to lead evidence in defence and thus, the proceedings conducted by the Tribunal in accepting the claim are vitiated. He submitted that once, the prayer of the appellant Insurance Company to summon the concerned witness of the Licensing Authority was found appropriate then, the Tribunal ought to have made efforts to secure the presence of the witness and should have ensured the recording of his testimony. He thus submits that the appeal deserves to be accepted and the matter deserves to be remanded back to the Tribunal for fresh decision after providing an appropriate opportunity to the appellant Insurance Company to prove its defences by leading evidence. 6. Per contra, Shri Hari Singh, learned Counsel appearing for the respondent claimants opposed the submissions advanced by the Counsel for the appellant. He urged that the burden of proving the defence that the owner of the vehicle knowingly permitted the vehicle to be driven by a driver having a fake licence was on the Insurance Company. He submitted that :he Insurance Company did not take such a plea in the reply. No investigation report was Tiled in support of the belated plea that the licence held by the driver was fake. He submitted that :he Insurance Company did not take such a plea in the reply. No investigation report was Tiled in support of the belated plea that the licence held by the driver was fake. He submitted that even if the licence was fake then also, the burden of establishing that the owner knowingly permitted the vehicle to be driven by a person holding a fake licence was on the Insurance Company and it miserably "ailed to discharge such burden. He thus urged that the appeal filed by the appellant Insurance Company is meritless and should be rejected. 7. I have given my thoughtful consideration to the arguments advanced by the learned Counsel appearing for the parties and have gone through the impugned judgment and record. It is not in doubt that the burden of establishing the defence regarding the driver plying the truck with a fake licence and the owner having knowingly permitted his vehicle to be driven by such a person was on the Insurance Company. The plea taken by the appellant Insurance Company in the reply filed with a claim petition was that the driver was not having a licence of appropriate category entitling him to drive the offending vehicle. In other words, if was not the case of the Insurance Company in its reply that the driver was holding a fake licence. 8. A belated plea of fake licence was raised by the appellant Insurance Company by way of an application dated 25.10.1999 filed by its Counsel before the Tribunal claiming that the licence held by the driver was fake. The Insurance Company could have had the licence verified by its investigator so as to substantiate the defence. The application was not even supported by the affidavit of the Authorised Officer of the Insurance Company. As already mentioned above, no investigator's report in support of the plea was filed before the Tribunal. Numerous options were available with the Insurance Company to substantiate its plea. A certificate could be procured from concerned Licensing Authority to establish that the licence was fake. No such step was taken. Its own Officer could have been examined in support of the objection but it chose not do so for reasons best known to the company and its Officials. A certificate could be procured from concerned Licensing Authority to establish that the licence was fake. No such step was taken. Its own Officer could have been examined in support of the objection but it chose not do so for reasons best known to the company and its Officials. The application filed by the Counsel and the attempt to summon the witness from the Licensing Authority at Hyderabad was nothing but an attempt to grope in dark. As a matter of fact, this Court is of the opinion that the Tribunal was not justified in summoning the witness of the licensing department at all. The prayer to summon the witness was frivolous and baseless. The Tribunal thus rightly closed the evidence upon non-appearance of the witness. 9. In view of the aforesaid discussion, this Court is of the firm opinion that the plea of fake licence taken by the Insurance Company before the Tribunal was contrary to its own pleadings in the reply. The plea was not supported by any documentary or oral evidence of the appellant's own witness and was rightly discarded by the Tribunal. No other argument was raised by the learned Counsel for the appellant.As a result of the aforesaid discussion, the appeal being without any merit is hereby rejected.No costs.Record be sent back forthwith.Appeal dismissed. *******