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2024 DIGILAW 238 (JHR)

National Insurance Company Limited v. Munaka Devi

2024-02-29

SUBHASH CHAND

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JUDGMENT : HON’BLE MR. JUSTICE SUBHASH CHAND The instant Misc. Appeal has been directed against the award dated 25.07.2009 passed in Compensation Case No.29 of 2005 by the learned Addl. District Judge-cum-Motor Vehicle Accident Claim Tribunal, West Singhbhum at Chaibasa whereby the learned Tribunal had ordered the amount of Rs.3,40,500/- as a compensation awarded to the claimant No.1 which was to be paid by the O.P.No.3- the National Insurance Co. Ltd., Chaibasa with interest thereon 6% p.a. from the date of filing the application till realization of the said amount. 2. The instant appeal has been directed by the Insurance Company against the impugned award aggrieved from the liability which has been fastened upon Insurance Company to pay the amount of compensation in the award on the grounds that though in the written statement the owner of the vehicle had taken this plea that the offending vehicle was insured by the Appellant-Insurance Company and it was being driven with a valid registration certificate and driving licence yet on behalf of the owner or driver of the vehicle no driving licence of the offending vehicle was produced and the learned Tribunal had shifted the burden of proof wrongly upon the Insurance Company to prove the breach of the policy that the driver of the offending vehicle was not having a valid and effective driving licence and in spite of directing the owner to pay the compensation had saddled the appellant with the liability to pay compensation on the very ground that the offending vehicle was insured by the Appellant-Insurance Company. 3. For disposal of this Misc. Appeal, the following point of determination is being framed: Whether the driver of the offending vehicle was having a valid or effective driving licence at the time of the motor accident ? if not its effect. 4. The brief facts culled out from the claim case are that the claimant Smt. Munaka Devi and her two children Pradeep Thakur and Sunil Thakur had moved the Claim Petition before the learned Tribunal claiming the compensation amount on the death of deceased Karu Thakur, the husband of claimant No.1 Smt. Munaka Devi and father of claimant No.2 and 3 Pradeep Thakur and Sunil Thakur who had met a motor accident with the offending TVS Victor Motorcycle bearing registration No. JH-06A-4778 due to rash and negligent driving of the driver Jaspal Digi being O.P.No.2 in the Claim Petition. 5. On behalf of O.P.No.1 & 2 the owner and driver of the vehicle in their written statement had opposed the Claim Petition that the Claim petition was barred for non-joinder and mis-joinder of necessary parties. It was also further asserted that the claimants have concealed the material fact in regard to the said accident. In fact, the accident took place due to the mistake of deceased Karu Thakur himself who was moving in middle of the road and a Truck was coming from the opposite direction which dashed to the deceased. The said motorcycle was not being driven by Jaspal Digi. He has been impleaded party unnecessarily. 5.1 It is also further asserted that the O.P.No.1 was the registered owner of the vehicle in question and the documents relating to the vehicles were up-to-date such as registration, driving licence, tax token, insurance etc. 5.2 It was also further asserted that the vehicle in question was insured with National Insurance Company, Chaibasa and the insurance was valid till 23.07.2007. If any liability arises out of the motor vehicle accident, for the same insurance company is liable because no violation of the terms and condition of insurance policy has been made by the O.P.No.1 & 2. 6. On behalf of the O.P.No.3-National Insurance Company appellant herein in the written statement it has been averred that as per information of responding Insurance Company it was Jaspal Digi who was driving the motorcycle at the relevant time of accident and was having no driving licence to drive the same. As such there is a gross violation of the terms and conditions of the insurance policy and consequently the Insurance Company is not liable to indemnify the any amount of compensation if awarded. 7. The learned Tribunal has framed the issue No. iv and v to this effect as under: (iv) Whether the driver of the vehicle was having a valid and effective driving licence ? (v) Whether the owner of the vehicle has violated the terms and conditions of the policy ? and the learned Tribunal had decided both these issues against the Insurance Company while passing the impugned award. 8. I have heard the learned Counsel of parties and perused the materials on record. 9. (v) Whether the owner of the vehicle has violated the terms and conditions of the policy ? and the learned Tribunal had decided both these issues against the Insurance Company while passing the impugned award. 8. I have heard the learned Counsel of parties and perused the materials on record. 9. While passing the impugned award, the learned Tribunal had held that the offending vehicle TVS Victor Motor Cycle JH-06A-4778 was involved in the motor accident and the husband of claimant No.1 and father of claimant No. 2 to 3 Karu Thakur had met the accident with this offending vehicle which was rashly and negligently driven by its driver Jaspal Digi. This finding recorded by the learned Tribunal had never been challenged by the owner or driver of the offending vehicle till date. Therefore, the factum of the accident by the offending vehicle on account of the rash and negligent driving of its driver Jaspal Digi is not disputed in this appeal. The quantum of the compensation is also not disputed. 9.1 The appellant Insurance Company had assailed the impugned award on the ground that the liability has been wrongly fastened upon the Insurance Company by the learned Tribunal; while the driver of the offending vehicle was not having a valid and effective driving licence. On account of the rash and negligent driving of him the accident was caused with which the deceased Karu Thakur had met with an accident and died on account of sustaining injuries. 9.2 It is pertinent to mention here that the accident in question was also proved on behalf of the claimant by producing the eye-witness of the accident A.W.2 Sidheshwar Prasad and on behalf of the claimants to prove this fact that the offending vehicle was being driven by Jaspal Digi was also filed the copy of the F.I.R. and charge-sheet as well. Ext. 2 is the certified copy of the F.I.R. on T.C.R. From the perusal of the same, it is evident that the date of accident is 21.01.2004. The informant is Dilip Kumar Thakur and accused is the driver of TVS Victor Jaspal Digi son of Sanatan Digi. This F.I.R. is registered on case crime No. 08 of 2004 under Sections 279/304A of I.P.C. The certified copy of the charge-sheet is Ext.3 on the record of trial court. The informant is Dilip Kumar Thakur and accused is the driver of TVS Victor Jaspal Digi son of Sanatan Digi. This F.I.R. is registered on case crime No. 08 of 2004 under Sections 279/304A of I.P.C. The certified copy of the charge-sheet is Ext.3 on the record of trial court. From the perusal of the same, it is evident that the I.O. after concluding the investigation filed charge-sheet against Jaspal Digi the driver of the TVS Victor Motor Cycle bearing registration No. JH-06A-4778. The certified copy of the postmortem report is of the deceased Karu Thakur is Ext.4. 9.3 The learned Tribunal while passing the impugned award had decided the issue No. (iii) which was framed as under: (iii) Whether the deceased Karu Thakur died in Motor Vehicle accident involving T.V.S. Victor Motor Cycle of red colour bearing registration No. JH-06A-4778 due to the rash and negligent driving of its driver ? This issue was decided positively in favour of the claimants. The finding recorded by the learned Tribunal was not challenged on behalf of the owner or driver of the offending vehicle in this appeal even challenging the same by filing the cross-objection in this appeal. 9.4 On behalf of O.P.No.2 the owner of the offending vehicle has filed the certified copy of the Judgment in Cr. Appeal No. 137 of 2005 Ext. A and the Insurance Policy Ext. B. No documentary or oral evidence was adduced on behalf of the owner and driver of the offending vehicle O.P.No.2 and 3. 9.5 On behalf of Insurance Company-O.P.No.3 witness Abhaya Nand Singh has been examined who has stated that he is Investigator of National Insurance Company in Compensation Case No. 29 of 2005. He had come to know that the driver of the offending vehicle was Jaspal Digi. He did not produce his driving licence on demand being made by him. He also met to the owner of the offending vehicle Sunil and demanded the driving licence of Jaspal Digi he could not produce the same. He had come to know that the driver of the offending vehicle was Jaspal Digi. He did not produce his driving licence on demand being made by him. He also met to the owner of the offending vehicle Sunil and demanded the driving licence of Jaspal Digi he could not produce the same. In cross-examination this witness has stated that driving licence is issued by District Transport Officer since no details of the driving licence were made available so he did not enquire for the same in the office of DTO., Jamshedpur 9.6 From the record of the trial court, it is found that neither the claimant nor the owner and driver of the offending vehicle had produced the driving licence of the offending vehicle. The initial burden to prove that the offending vehicle was being driven by its driver with a valid and effective driving licence lies upon the owner and driver of the vehicle. In this case on behalf of the owner and driver no documentary or oral evidence has been adduced to show in regard to the driving licence of the offending vehicle. 9.7 The learned trial court has wrongly shifted the burden upon the Insurance Company to prove the same; while on behalf of Insurance Company witness Abhaya Nand Singh-Investigator has been examined who has stated that he investigated the Compensation Case No. 29 of 2005 on behalf of Insurance Company and found that the offending vehicle was being driven by Japal Digi and he demanded the driving licence from Jaspal Digi and also the owner of the offending vehicle Sunil Kumar Purty but both could not produce the same. Even no details for the same were furnished by them. 9.8 Since the initial burden of proof has not been discharged by the owner and driver of the offending vehicle by adducing the driving licence of the driver of the offending vehicle. Consequently the burden of proof cannot be shifted upon the Insurance Company to prove the fundamental breach of terms and conditions of the insurance policy in regard to the driver having not the valid and effective driving licence. 10. On behalf of the owner O.P.No.1 the certified copy of the Judgment in Cr. Appeal No. 137 of 2005 has been adduced which is Ext. 10. On behalf of the owner O.P.No.1 the certified copy of the Judgment in Cr. Appeal No. 137 of 2005 has been adduced which is Ext. A. From the perusal of the same, it is found that this appeal was preferred by Jaspal Digi against the Judgment dated 02.12.2005 passed in G.R. Case No. 33 of 2004 by the S.D.J.M. Sadar whereby the appellant was convicted for the offence under Sections 279/304A of I.P.C. and sentenced with imprisonment of six months and two years for both the offences respectively. 10.1 From the perusal of the Judgment Ext.A, it is found that the learned Appellate Court Additional Sessions Judge, F.T.C. Vth, West Singhbhum, Chaibasa had decided this appeal on 22.02.2008 and allowed the appeal and acquitted Jaspal Digi giving benefit of doubt in G.R.Case No. 33 of 2004. His conviction was set aside. The learned Appellate Court recorded this finding that Karu Thakur died in the motor accident caused by TVS Motor Cycle; but the prosecution has not proved the case that the said TVS Motor Cycle was being driven at the relevant time of accident by the convict/appellant Jaspal Digi. 10.2 On the basis of this very Judgment the owner of the offending vehicle cannot evade from the onus to prove that the offending vehicle was being driven with a valid or effective driving licence. 10.3 It is settled law that Judgment of criminal courts are not binding and relevant in motor accident claim matters or civil matter. The Hon’ble Apex Court held in Ramdayal Jat vs Laxmi Prasad, AIR 2009 SC 2563: 21. We, therefore, are of the opinion that although the judgment in a criminal case was not relevant in evidence for the purpose of proving his civil liability, his admission in the civil suit was admissible. The question as to whether the explanation offered by him should be accepted or not is a matter which would fall within the realm of appreciation of evidence. The Trial Court had accepted the same. The first appellate court refused to consider the effect thereof in its proper perspective. The appellate court proceeded on the basis that as the judgment of the criminal court was not admissible in evidence, the suit could not have been decreed on the said basis. The Trial Court had accepted the same. The first appellate court refused to consider the effect thereof in its proper perspective. The appellate court proceeded on the basis that as the judgment of the criminal court was not admissible in evidence, the suit could not have been decreed on the said basis. For the said purpose, the admission made by the appellant in his deposition as also the effect of charge had not been taken into consideration. We, therefore, are of the opinion that the High Court cannot be said to have committed any error in interfering with the judgment of the first appellate court. 10.4 Though the finding recorded by the Criminal Court in a Criminal Case is not binding upon the Motor Accident Claims Tribunal, yet for the sake of argument relying the Judgment of the Appellate Court in Cr. Appeal No. 137 of 2005 in which Jaspal Digi was acquitted giving benefit of doubt from the charge under Sections 279 and 304A of I.P.C. in G.R. Case No. 33 of 2004 setting aside the Judgment of conviction passed by the learned trial court on 02.12.2005; Even in this Judgment the Criminal Appellate Court has held the said accident was caused by the offending vehicle T.V.S. Victor Motor Cycle bearing registration No. JH-06A-4778. The burden of proof lies upon the owner of this vehicle O.P.No.1 to prove that by whom the said offending vehicle was being driven at the time of the accident in which Karu Thakur died having met with the accident. 11. The Hon’ble Allahabad High Court held in United India Insurance Company vrs. Sanjay Kumar ACJ 2013 at 1223: 25. Whether the driver had valid licence or not, was in the exclusive knowledge of the driver of the Tanker. The burden was upon the driver or the owner of the Tanker to prove that the driver had valid licence {See National Insurance Co. Ltd. v. Brij Pal Singh and another: 2003(3) TAC 849 (All) : (2003 All LJ 873) and Oriental Insurance Co. Ltd. v. Smt. Indrasani Devi and others: 2006 (1) TAC 261 (All)}. Neither any driving licence was produced on their behalf nor any witness was examined. In view of this, it can not be said that the Tanker was not being driven by the person having valid licence. 11.1 The Hon’ble Apex Court held in Pappu & Ors. vrs. Ltd. v. Smt. Indrasani Devi and others: 2006 (1) TAC 261 (All)}. Neither any driving licence was produced on their behalf nor any witness was examined. In view of this, it can not be said that the Tanker was not being driven by the person having valid licence. 11.1 The Hon’ble Apex Court held in Pappu & Ors. vrs. Vinod Kumar Lamba & Anr. (2018) 3 SCC 208 : 12. This Court in National Insurance Co. Ltd. vs. Swaran Singh (2004) 3 SCC 297 has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. 13. In the present case, Respondent 1 owner of the offending vehicle merely raised a vague plea in the written statement that the offending Vehicle No. DIL 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, Respondent 1 did not enter the witness box or examine any witness in support of this plea. Respondent 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. Respondent 1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring Respondent 2 insurance company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending truck was not enough for Respondent 1 to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. Merely producing a valid insurance certificate in respect of the offending truck was not enough for Respondent 1 to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle. 12. Since the initial burden to prove that the offending vehicle was driven by its driver with a valid and effective driving licence has not been proved by the registered owner of the vehicle O.P.No.1., the Insurance Company i.e. Appellant cannot be made liable to pay the amount of compensation awarded by the learned Tribunal. In view of Section 150 of the M.V. Act since there is a fundamental breach of terms and conditions of the insurance policy in this case where the offending vehicle though was insured by the Insurance Company, yet it was not being driven at the relevant time of accident by its driver with a valid and effective driving licence. So far as the burden of the Insurance Company is concerned, the Insurance Company has discharged its burden by adducing one witness Investigator who conducted the investigation and made demand of the driving licence from the owner of the offending vehicle and driver as well but the same was not produced by them nor the details of the vehicle even were adduced. 13. In view of the above, the finding recorded by the learned Tribunal on the issue No. iv & v bears infirmity and needs interference. Accordingly, this Misc. Appeal deserves to be allowed. 14. This Misc. Appeal is hereby allowed. 13. In view of the above, the finding recorded by the learned Tribunal on the issue No. iv & v bears infirmity and needs interference. Accordingly, this Misc. Appeal deserves to be allowed. 14. This Misc. Appeal is hereby allowed. The impugned award passed by the learned Tribunal is set aside to the extent of fastening the liability upon the appellant-National Insurance Company to pay the compensation amount to the claimants indemnifying the owner of the offending vehicle rather the liability is fastened to the owner of the offending vehicle respondent No.4 who is O.P.No.1 in the Claim Petition. 15. However, it is made clear herein that if any amount of compensation has been paid to the claimants, the Insurance Company shall be entitled to recover the same from the owner of the offending vehicle. 16. Let the learned Tribunal be communicated in regard to this Judgment. The statutory amount, if any, be sent back to the learned Tribunal.