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2024 DIGILAW 299 (HP)

New India Assurance Co. Ltd. v. Khairati Lal

2024-04-30

SATYEN VAIDYA

body2024
JUDGMENT : Satyen Vaidya, J. The instant appeal has been filed against award dated 28.03.2013 passed by learned Motor Accident Claims Tribunal-I, Sirmaur District at Nahan in MAC Petition No. 63-MAC/2 of 2007, whereby respondent No.1 has been awarded a sum of Rs. 1,80,000/- alongwith interest @ 7.5% per annum and the liability has been fastened on the appellant/insurer. 2. Respondent No.1 filed claim petition under Section 166 of the Motor Vehicles Act (for short, “The Act”) for grant of compensation with the averments that on 10.05.2005 respondent No.1 was on board vehicle No. HP-18A-0201 and was travelling from Ambala to Nahan. At place near Chotti Bassi, a bus bearing No. CH-03B-1215 came from opposite side and hit the vehicle No. HP-18A-0201 causing injuries to respondent No.1. The cause of accident was attributed to the rash and negligent driving of respondent No.2. The offending bus was stated to be owned by respondent No.3 and insured by the appellant. Respondents No. 4 and 5 were impleaded as party-respondents, being owner and insurer of the vehicle in which the petitioner was travelling. 3. Respondent No.1 claimed compensation by alleging his income at Rs.5,000/- per month. Respondent No.1 further claimed himself to be 44 years of age. It was averred that FIR No. 83 dated 10.05.2005 under Sections 279 and 337 of IPC was registered at Police Station, Naraingarh against respondent No.2. 4. Respondent No.1 further claimed to have suffered disability and on such premise, claimed a sum of Rs.7,50,000/-as compensation. 5. The owner of the bus i.e. respondent No.3 filed his response. It was alleged that respondent No.1 himself was driving vehicle No. HP-18A-0201 and cause of accident was the rash and negligent driving of respondent No.1 himself. It was also submitted that bus No. CH-03B-1215 was comprehensively insured with the appellant. 6. The driver of the bus i.e. respondent No.2 adopted the reply filed on behalf of the owner of the bus/respondent No.3. 7. The appellant filed its separate reply and besides other objections alleged that the vehicle at the time of accident was being plied in contravention of terms and conditions of the insurance policy. It was specifically alleged that the driver of bus No. CH-03B-1215 was not possessing a valid driving licence at the time of the accident. 8. 7. The appellant filed its separate reply and besides other objections alleged that the vehicle at the time of accident was being plied in contravention of terms and conditions of the insurance policy. It was specifically alleged that the driver of bus No. CH-03B-1215 was not possessing a valid driving licence at the time of the accident. 8. Respondents No. 4 and 5 also filed their reply, but their stand will not be relevant for adjudication of the instant appeal as even learned Tribunal has not fastened any liability on said respondents and learned counsel for the appellant has also not pressed any relief against them. 9. Learned Tribunal framed the following issues: 1. Whether the petitioner sustained injuries in the motor vehicles accident which happened on 10.5.2005 at Chhoti Bassi, allegedly on account of rash and negligent driving of respondent No.1, as alleged? OPP 2. In case No.1 is determined in the affirmative, to what amount of compensation the claimant is entitled to and from whom? OPP 3. Whether the driver, respondent No.1 was not holding a valid and effective driving licence, at the relevant time, as alleged? OPR-3 4. Whether the offending vehicle was driven in contravention of the terms and conditions of the insurance policy, as alleged? OPR-3 5. Whether the accident occurred on account of composite negligence of respondent No.1 and respondent No.4 while driving their respective vehicles at the relevant time? OPR-3 6. Whether the driver of vehicle No. HP-18-A-0201 was not holding a valid and effective driving licence at the relevant time, as alleged? OPR-5 7. Whether the petitioner was travelling as gratuitous passenger in a goods vehicle, as alleged OPR-5 8. Relief. 10. Issues 1, 2 and 5 were decided in affirmative. Remaining issues were decided in negative and the petition was allowed by awarding a sum of Rs.1,80,000/- as compensation in favour of respondent No.1 alongwith interest @ 7.5% per annum from the date of filing of the petition. 11. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 12. Learned counsel for the appellant has assailed the findings on issues No. 3 and 4. It has been contended that learned Tribunal has misdirected itself while holding that the appellant had failed to discharge its burden and thereby returned the findings on said issues in negative. 13. 12. Learned counsel for the appellant has assailed the findings on issues No. 3 and 4. It has been contended that learned Tribunal has misdirected itself while holding that the appellant had failed to discharge its burden and thereby returned the findings on said issues in negative. 13. Perusal of impugned award, more particularly, the findings on issues No. 3 and 4 reveal that as per learned Tribunal, it was for the insurer/appellant to prove that the driving licence of respondent No.2/driver of bus No. CH-03B-1215 was fake and further the appellant was also obligated to prove that the owner of the bus No. CH-03B-1215 had not taken proper care and caution to verify the licence of driver before allowing respondent No.1 to drive the offending vehicle. On above premise, it has been held that the appellant/insurer of bus No. CH-03B-1215 was liable to satisfy the award. 14. Noticeably, respondent No.2 driver of bus No. CH-03B-1215 did not file any reply, rather, he adopted the reply filed by respondent No.3. Both these respondents did not make any utterance with respect to the fact that respondent No.2/driver of bus No. CH-03B-1215 held any licence to drive the vehicle at the time of accident. Not only that, the driving licence, if any, held by respondent No.2/driver of bus No. CH-03B-1215 was also not placed on record. In this background, there was no assertion from respondents No. 2 and 3 that respondent No.2/driver of bus No. CH-03B- 1215 was holding a valid driving licence. 15. On the other hand, the appellant had taken a specific objection that the driver of bus No.CH-03B-1215 was not having any licence at the time of accident. Accordingly, issues No. 3 and 4 were framed. 16. The appellant examined District Transport Officer (DTO), Firozpur as RW-1 in order to show that a driving licence exhibited on record as Ext.RW1/A was not issued by the office of DTO, Firozpur and for such reason was a fake document. 17. Learned Tribunal chose to ignore the deposition of RW-1 on the ground that the copy of licence Ext. RW1/A relied upon by the appellant had not been produced either by the driver or owner of the bus and as such, the document Ext. RW1/A could not be linked to the driver of the bus No. CH-03B-1215. Learned Tribunal thereafter proceeded to hold that the insurer/appellant had failed to discharge its burden. RW1/A relied upon by the appellant had not been produced either by the driver or owner of the bus and as such, the document Ext. RW1/A could not be linked to the driver of the bus No. CH-03B-1215. Learned Tribunal thereafter proceeded to hold that the insurer/appellant had failed to discharge its burden. 18. The driver of the bus No. CH-03B-1215 could drive the offending vehicle in case he held a valid driving licence issued under the Act and Rules framed thereunder. The driver was impleaded as a party. He not only chose to abstain from filing reply, he did not come-forward to disclose the particulars of driving licence, if any, held by him. He did not also choose to step into the witness box. As a result, nothing came forward from respondent No.2, driver of the bus No. CH-03B-1215 to establish even prima-facie that he was holding a valid driving licence. 19. Similarly, the owner of the bus No.CH-03B-1215 i.e. respondent No.3, also did not choose to step into the witness box. It was not the pleaded case of respondent No.3 that he had employed respondent No.2 as driver on bus No. CH-03B-1215 after taking due care and caution about the factum of holding of licence by respondent No.2. Since, respondent No.3 did not choose to step into the witness box, no such version came on record at any stage of the trial of the case. 20. In the aforesaid backdrop, the findings returned by learned Tribunal that the burden was on the appellant to prove a negative fact, cannot be sustained. 21. The insurer is obligated to indemnify the insured in case the terms and conditions of contract of insurance are not violated. One of the mandatory terms of contract of insurance was that the vehicle should be driven by a person holding a legal and valid driving licence. The person driving the vehicle was the best person to know whether he was having any driving licence or not. If he held and possessed any licence, it was for him to have disclosed the particulars. In absence, no one could come to know as to whether the driver of the bus was having any licence or not. Thus, the burden to prove the existence of driving licence was on the driver and owner of the bus. If he held and possessed any licence, it was for him to have disclosed the particulars. In absence, no one could come to know as to whether the driver of the bus was having any licence or not. Thus, the burden to prove the existence of driving licence was on the driver and owner of the bus. As noticed above, none of them had taken any pains to disclose the particulars of driving licence, if any, held by respondent No.2, driver of bus No. CH-03B-1215. In this view of the matter, the onus cannot be said to have shifted on the appellant. 22. Still, the appellant had led evidence by examining RW-1 with record of DTO, Firozpur. It was tried to be proved that a licence in the name of respondent No.2 i.e. Ext.RW-1/A was a fake document. The witness RW-1 was cross-examined at length on behalf of the driver and owner of bus No. CH-03B-1215, but it was nowhere suggested to RW-1 that Ext. RW-1/A did not relate to respondent No.2/ driver of bus No.CH-03B-1215 or the said respondent was holding any other licence. 23. Similarly, when respondents No.2 and 3 had not disclosed any particulars about the driving licence, if any, held by respondent No.2, the appellant was not obligated to lead any evidence to prove a negative fact. Hence, the conclusion drawn by learned Tribunal to the effect that the appellant had failed to prove owner’s omission to take due care and caution to verify the factum of driver holding the licence before employing him can also not be sustained. As noticed above, respondents No.2 and 3 were conspicuously silent as to particulars of the licence held by respondent No.2. It was not the case of respondent No.3 that he had seen or verified some licence held by respondent No.2 before employing him as driver. 24. In view of above discussion, the appeal is allowed. The findings returned on issues No. 3 and 4 by the learned Tribunal are set-aside. It is held that respondent No.2 was not holding valid driving licence at the time of accident and respondent No.3 had committed clear breach of terms and conditions of the insurance policy. In result, the appellant is absolved of liability to pay the compensation, which in turn, shall be payable by respondents No. 2 and 3 being driver and owner of the bus No. CH-03B-1215. In result, the appellant is absolved of liability to pay the compensation, which in turn, shall be payable by respondents No. 2 and 3 being driver and owner of the bus No. CH-03B-1215. The liability of respondents No. 2 and 3 shall be joint and several. 25. The appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any.