JUDGMENT : 1. The above-titled Civil 1st Miscellaneous Appeal has been preferred by the appellants against the Award dated 31.10.2016, passed in claim petition titled “Krishan Lal vs. Mannu Ram & Ors.” by the Court of learned Additional District Judge as Motor Accident Claims Tribunal, Udhampur, (hereinafter referred to as “The Tribunal”), whereby the claim petition filed by respondent-Krishan Lal as claimant had been allowed and the appellants had been directed to pay an amount of Rs.85,000/- along with interest @ 7.5% per annum to respondent no. 1 i.e. Insurer of the vehicle 2. It has been pleaded that the respondent-Krishan Lal had filed a claim petition on the ground that on 17.05.2013, while he was standing on road side near JK City Scan, NHW Udhampur, a Tipper bearing no. JK14A/3629 being driven by its driver namely, Munnu Ram, hit him, as a result of which he sustained grievous injuries and was later on, certified to have suffered 7% disability; that initially the petition had been filed amongst others against registered owner of the vehicle-Nitish Gupta, who later died and the appellants and his parents were impleaded as party respondents in his place, who appeared through their counsel and filed objections; that the respondent insurance company in its objections to the claim petition had taken a stand that the petition was not maintainable and also took a stand that the driver of the vehicle was driving the vehicle without having any valid and effective driving license at the time of accident and also that the vehicle was being driven in contravention of the registration fitness certificate and route permit of the vehicle; that the Tribunal among other issues also framed issue no. 4 onus of which was placed on the respondent-insurer, which reads as under:- “4. Whether at the time of occurrence the offending vehicle was being plied in breach of its policy conditions i.e. in violation of Registration Certificate, fitness and route permit if so, what is its effect?” (OPR-3) 3. 4 onus of which was placed on the respondent-insurer, which reads as under:- “4. Whether at the time of occurrence the offending vehicle was being plied in breach of its policy conditions i.e. in violation of Registration Certificate, fitness and route permit if so, what is its effect?” (OPR-3) 3. The appellants further pleaded that the insurance company did not lead any evidence to prove the aforesaid issue and the Tribunal vide impugned award returned a finding on this issue wrongly by drawing an adverse inference against the owner that on the date of accident, there was no valid road permit and fitness certificate of the offending vehicle, and, as such, the vehicle was being driven in violation of the terms and conditions of the policy at the time of the accident. 4. The impugned award has been assailed on the ground that the Tribunal had not appreciated the material on record and the relevant law on the subject in its right perspective and had wrongly granted liberty to the respondent-Insurer to recover the amount from the owner of the vehicle; that the offending vehicle was not used for transport purpose, so it did not require any fitness certificate or route permit from the Transport Authority; that the insurer at the time of issuance of the policy had verified that the vehicle in question possesses all the necessary certificates including fitness certificate and route permit, as such, the respondent -Insurer cannot be heard to say that it does not possess the copies of the fitness certificate and route permit and further that it can be absolved of the liability/burden to prove that the vehicle in question was being plied without fitness certificate and route permit by merely making an application before the Tribunal calling upon the appellants to produce the documents especially when the original owner of the vehicle in question has expired and the appellants were arrayed as respondents in the claim petition being his legal heirs; that the burden of proof lies on the person who asserts a fact and would fail if no evidence at all is given by either side as per the Evidence Act. That being so, it was the respondent-insurer who had to prove that the vehicle was being plied without having proper fitness certificate and route permit; that the presumption under the Evidence Act can be drawn only if the evidence could be and is not produced. However, in the present case, the original legal heirs of the vehicle in question had been repeatedly praying before the Tribunal that the appellants were not in possession of the documents which they have been called upon to produce and they have applied for the issuance of the certificates to the transport authorities but the same have not been supplied to them and sought time for the production of the same; that the offending vehicle on the date of accident had valid fitness certificate as well as route permit but the same could not be produced at the relevant point of time for the reason that the same were not in the possession of the appellants. 5. Mr. Jatinder Choudhary, learned counsel appearing for the appellants, reiterating the grounds pleaded in the memorandum of the appeal, vehemently argued that the claim petition had been filed before the Tribunal by the claimant Krishan Lal on 02.12.2013, impleading registered owner of the vehicle Nitish Gupta, in whose place, the appellants after his death had been impleaded as respondent no. 2 and that aggrieved of the finding recorded on issue no. 4 by the Tribunal, drawing adverse inference merely on the failure of the appellants herein as respondents before the Tribunal to produce documents as per direction of the Tribunal. He has argued that the onus to prove this issue had been placed on the respondent-Insurer, therefore, it was incumbent upon it to lead evidence to prove this issue. 4 by the Tribunal, drawing adverse inference merely on the failure of the appellants herein as respondents before the Tribunal to produce documents as per direction of the Tribunal. He has argued that the onus to prove this issue had been placed on the respondent-Insurer, therefore, it was incumbent upon it to lead evidence to prove this issue. However, the respondent insurer failed to lead any evidence as it had failed to produce on record any document sought to be proved or to submit a list of witnesses so as to examine any official from the Transport Authority granting fitness certificate or route permit or to examine owners of the vehicle as witnesses and in absence of any such step, the Tribunal, in a very strange manner, on an application moved by the respondent insurer directed the owner appellants to produce the documents in question which were not in their possession as the original registered owner had died, therefore, the adverse inference drawn by the Tribunal against the appellants for not having documents was fallacious and the Tribunal could not have decided the issue in the manner it had decided in favour of the respondent-Insurer and prayed that the award to the extent of authorizing the respondent insurer to pay the awarded amount and then to recover it from the appellants owners be set-aside. 6. Mr. Rupinder Singh, assisted by Ms. Damini Singh Chouhan, Advocates, appearing for respondent-Insurance Company, ex adverso, argued that had the appellants being legal heirs as parents of the deceased registered owner Nitish Gupta were in possession of the documents, they should have produced the same before the Tribunal. Despite direction they did not produce the same before the Tribunal, as such, the Tribunal had rightly drawn the adverse inference with regard to the fact that the vehicle was being driven at the time of accident without road permit and fitness certificate. He has further argued that the appellants instead of placing on record the copies of the documents should have moved an application for leading evidence in this Court, at appellate stage in terms of order 41 Rule 27 of CPC. However, they have chosen not to adopt this course and, as such, the finding recorded by the Tribunal on issue no. However, they have chosen not to adopt this course and, as such, the finding recorded by the Tribunal on issue no. 4 on the basis of adverse inference cannot be interfered with for the reason that the documents were available with the appellants even at the time of passing of the award. 7. Heard arguments on both the sides, perused the record and considered the matter. 8. One Krishan Lal claiming to have been disabled as a result of the injuries received by him in a vehicular accident involving Tipper bearing no. JK14A/3629 on 17.05.2013 on National Highway at Udhampur, being driven rashly and negligently by its driver Mannu Ram filed a claim petition before the Tribunal. It appears that respondent no. 2 Nitish Gupta, who was registered owner of the offending vehicle died during the pendency of the petition before the Tribunal and was substituted by his legal heirs Ved Raj Gupta and Usha Devi as his parents. On filing objections by the respondents, the Tribunal raised following issues on the basis of the pleadings; (i) Whether on 17.05.2013 at about 8 p.m., when the petitioner was standing on the road side Near JK City Scan NHW Udhampur, was hit by a vehicle (Tipper) bearing No. JK14A/3629 driven by respondent no. 1 in rash and negligent manner in high speed thereby causing injuries to the petitioner?(OPP) (ii) In case issue no. 1 is proved in affirmative, whether the petitioner is entitled to receive the compensation, if yes, from whom and the quantum? (OPP) (iii) Whether the offending vehicle was being driven by the driver who did not possess a valid and effective driving license at the time of accident, if so, what is its effect? (OPP-3) (iv) Whether at the time of occurrence the offending vehicle was being plied in breach of its policy conditions i.e. in violation of Registration Certificate, fitness certificate and route permit if so, what is its effect? (OPP-3) (v) Relief ? 9. The Tribunal vide impugned award granted compensation to the tune of Rs.85,000/- including amount of Rs.25,000/- as no fault liability along with interest @ 7.5% per annum from the date of filing of the petition till its final payment in favour of the claimant. The Tribunal on the basis of finding recorded on issue no. IV, fastened the liability on the owner, instead of insurer. Para no. The Tribunal on the basis of finding recorded on issue no. IV, fastened the liability on the owner, instead of insurer. Para no. 15 of the impugned Award, being relevant is reproduced, for convenience:- “15. The onus to prove these issues rested upon the respondent no. 3 in claim petition i.e., insurance company. The respondent no. 3 has filed an application directing the legal representatives of the deceased owner to produce the documents viz fitness certificate and route permit of the offending vehicle. The legal representatives of the owner are duly represented by the counsel in the case but they chose not to appear and furnish the documents despite the directions of the Court. The adverse inference is to be drawn against the owner that on the day of accident there was no valid route permit and fitness certificate of the offending vehicle. The vehicle was thus driven in violation of the terms and conditions of the policy. The issue no. 3 thus stands proved in favour of respondent no. 3 against the petitioner.” 10. In view of finding recorded on issue no. (iv) drawing adverse inference, on failure of the respondents (appellants herein) to produce route permit and fitness certificate of the offending vehicle, the Tribunal fastened the liability to pay the awarded amount on the owner as it was recorded that the insurance company had successfully proved that the owner was not having route permit and fitness certificate. It was for the owner of the vehicle to controvert the position but his legal heirs had chosen not to prove their case and as such, the insurance company was held to be not liable to indemnify registered owner and finally the respondent insurer was directed to firstly pay the amount to the claimant and then recover the same from the owners of the vehicle. 11. Since the onus to prove issue no. IV had been placed on the respondent-insurance company, which had taken a specific plea in its pleadings before the Tribunal that the vehicle was being plied in breach of the conditions of the insurance policy as in violation of the registration certificate, fitness certificate and route permit. The respondent-insurance company, as per record of the Tribunal, had not led evidence of any sort, except that it had moved an application before the Tribunal seeking a direction to the appellants as respondents therein for production of the documents. The respondent-insurance company, as per record of the Tribunal, had not led evidence of any sort, except that it had moved an application before the Tribunal seeking a direction to the appellants as respondents therein for production of the documents. The respondent-insurance company at the time of insuring of offending vehicle would have scrutinized the documents at least the registration certificate of the vehicle and was also in a position to seek the verification reports with regard to all the documents i.e. registration certificate, fitness certificate and route permit of the vehicle from the registering transport authority. The respondent-insurance company had not taken pains to do any of these acts and was satisfied only on moving an application for a direction to the owner of the vehicle for production of the documents. The respondent-insurance company to discharge the onus to prove an issue which was to be proved by it, should have led some evidence indicating that the vehicle was being driven without any registration certificate and route permit, however, if it had failed to examine even an official of the company or any official/officer from the registering transport authority, to prove its contentions. 12. The Tribunal just on moving an application by the respondent-insurer for a direction to produce documents by the owner and on failure of the owner to do so had drawn an adverse inference that the owner had no documents like registration certificate, fitness certificate and route permit at the time of the accident. Such an inference cannot be drawn without there being any evidence led by the party on which the onus to prove the issue had been placed. The Tribunal in the considered opinion of this Court has very strangely held that since the owner had failed to produce any document as per directions of the Tribunal, an inference can be drawn that the respondent insurer on whom the onus to prove the issue had been placed, had proved the same. Such a recourse in the considered opinion of this Court is not permissible in view of the provisions of the Evidence Act as it is always the party that asserts a thing has to prove the same and it is not for the other party to prove the same as a reverse burden without any specific law on the subject. Such a recourse in the considered opinion of this Court is not permissible in view of the provisions of the Evidence Act as it is always the party that asserts a thing has to prove the same and it is not for the other party to prove the same as a reverse burden without any specific law on the subject. It will not out of place to mention that the appellants who had stepped into the shoes of their deceased son as owner had taken specific plea that they were not in possession of the documents of the offending vehicle and had sought time for their production. It appears that the Tribunal had overlooked this important aspect of the matter as well. 13. Having regard to the afore-stated discussions and observations made hereinabove, this Court is of the considered opinion that the Tribunal has misdirected itself to hold that issue no. IV has been proved by the respondent Insurance Company on the basis of the adverse inference drawn by the Tribunal on the failure of the owner of the vehicle to produce the documents, as such, the finding recorded on issue no. IV is not maintainable and is liable to be set-aside. 14. Viewed thus, the finding recorded on issue no. IV by the Tribunal being arbitrary, is set-aside and it is held that the respondent Insurance Company had failed to prove the issue that the offending vehicle at the time of its accident was being driven without registration certificate, fitness certificate and route permit for want of evidence. As a result, the appeal succeeds and is allowed. Impugned order is modified to the extent that the awarded amount shall be payable by the respondent Insurance company with no right of recovery from the appellants. The awarded amount, if deposited, with the Registry of this Court is ordered to be released in favour of the respondent claimant along with interest accrued thereon, on due identification. 15. Tribunal record be sent down forthwith along with a copy of this judgment for information and record.