Amar Singh and Others vs Gulam Mohd. and Others

N.K. Mody, J.—This order shall also govern the disposal of M.A. No. 2526/2004, which is an appeal against the same award filed by respondent No. 2.

Being aggrieved by the award dated 31.10.2003, passed by 1st MACT, Ujjain, in Claim Case No. 157/2002, whereby claim petition filed by the appellant is allowed and a sum of Rs. 2,54,000, was awarded, the present appeal has been filed.

Short facts of the case are that in a motor accident, which took place on 28.3.2002, Hari @ Hari Narayan, who happens to be brother of the appellants died. In the claim petition it was alleged that the deceased was cleaner on Truck bearing registration No. GJ 09 V 125, which was going towards Nasik. It was alleged that truck was being driven by respondent No. 1 and was owned by respondent No. 2 and insured with respondent No. 3. It was alleged that the said truck met with an accident with Truck bearing registration No. MP 09 KB 4680, which was driven by respondent No. 4, owned by respondent No. 5 and insured with respondent No. 6. It was alleged that the accident occurred because of rash and negligent driving of respondent Nos. 1 and 4.

The claim petition was contested by the respondents on various grounds, including on the ground that respondent No. 1 was not having driving licence. It was prayed that claim petition be dismissed.

After framing of the issues and recording the evidence learned Tribunal allowed the claim petition against respondent Nos. 1 to 3 holding that the accident occurred because of rash and negligent driving of respondent No. 1 and dismissed the claim petition against respondent Nos. 4 to 6. In the award a sum of Rs. 2,54,000 were awarded. So far as respondent No. 3 is concerned the learned Tribunal found that since respondent No. 1 was not possessing the valid driving licence, therefore, respondent No. 3 shall have right to recover amount from respondent Nos. 1 and 2.

In M.A. No. 582/2004, learned Counsel for the appellant submits that amount awarded is on lower side, age of the deceased has been assessed between 40 and 45 years, while as per Panchnama age of the deceased was assessed as 30 years. It is submitted that amount awarded is on lower side. When it was pointed out to the learned Counsel for the appellant that the deceased was unmarried and all the appellants are brothers then the Counsel for the appellant submits that he does not want to press the appeal. Hence M.A. No. 582/2004 stands dismissed as not pressed.

So far as M.A. No. 2526/2004 is concerned, learned Counsel for respondent No. 2 submits that learned Tribunal committed error in holding that respondent No. 3 was having right to recover amount from respondent Nos. 1 and 2. It is submitted that the burden of proof that respondent No. 1 was not having driving licence was on respondent No. 3 and for proving this fact a certificate issued by Licence Authority, ARTO Jhansi, was produced, which is Exhibit D-2 wherein on a rear part of photo-stat copy of licence it is mentioned that the said licence has not been issued by the Licence Authority, Jansi. This certificate is dated 26.12.2003, on the basis of this evidence, learned Tribunal found that the respondent No. 1 was not possessing the valid driving licence, hence respondent No. 3 is liable to recover amount from respondent Nos. 1 and 2.

Learned Counsel for respondent Nos. 1 and 2 submits that to prove certificate Exhibit D-2 an application was filed by respondent No. 3 for issuance of commission, which was allowed by the learned Tribunal vide order dated 27.3.2003 and Mr. Yogendra Pandey, Advocate has been appointed as Commissioner, who went to Jhansi to record statements of concerning officer along with warrant of commission. It is submitted that the date for recording of evidence was fixed on 25.8.2003, but no statement could have been recorded as neither the Counsel nor officer of the Insurance Company was present at Jhansi. Mr. Yogendra Pandey, Commissioner submitted the report on 3.9.2003, before the Tribunal against which prayer was made on behalf of respondent No. 3 for issuance of fresh Commission, which was refused against which no appeal or revision was filed by the respondent No. 3. It is submitted that in the circumstances learned Tribunal committed error in holding that on the basis of Exhibit D-2 that respondent No. 1 was not in possession of valid driving licence.

Mr. R.S. Parmar, learned Counsel for the respondent Nos. 1 and 2 placed reliance on a decision in the matter New India Assurance Co. Ltd. Vs. Vidya Bai and Others, wherein the Insurance Company contended that driver of the offending vehicle was holding a fake licence and an application was filed by Administrative Officer of the company whereby an application was filed by surveyor on which the Licensing Authority had made a remark that the relevant licence was not issued by it and the Surveyor''s report was produced but the Surveyor was not examined nor official from Regional Transport Office was examined to establish that no licence was issued in favour of the driver, despite opportunity afforded by the Appellate Court, it was held that in the absence of record from the Transport Authority indicating that the driver had no licence at the relevant time the Insurance Company cannot be exempted from liability.

Further reliance was placed on a decision in the matter of New India Assurance Co. Ltd. Vs. Bhagwan Das and Others, , wherein this Court has held that Insurance Company produced a certificate issued by R.T.O. that licence said to have been issued by it to the driver of the offending vehicle had not been issued by that office and neither any one was examined from the office of R.T.O. nor any record from that office was exhibited, it was held that Insurance Company could discharge its burden to establish its conception that the driver of the offending vehicle did not possess any valid licence so as to exonerate itself from liability.

Reliance was placed in the matter of United India Insurance Co. Ltd. Vs. Sumitra Devi and Others, wherein the Division Bench of Himachal Pradesh High Court has held that where the Insurance Company failed to lead cogent evidence to prove that the driver had no valid licence then the Insurance Company cannot be exempted from its liability.

Further reliance was placed in the matter of New India Assurance Co. Ltd. Vs. Phoolan Bai and Others, , wherein this Court has held that if licence on subsequent inquiry is found to be forged one, it cannot be said that there was breach of terms of policy by the owner. It was also held that since the Insurance Company could not establish that the driver had no valid licence so as to exonerate itself from liability, therefore, Insurance Company cannot be exonerated from liability to pay compensation on the above ground

Reliance was placed on the decision in the matter of National Insurance Co. Ltd. Vs. Mannibai and Others, wherein this Court has observed that the Insurance Company did not find it necessary to prove that driver was having a fake licence which fact was within the knowledge of the insured, Insurance Company is liable.

In the present case, respondent No. 3 got the Commissioner appointed for proving the document from the office of R.T.O., Jhansi, the learned Tribunal appointed the Commissioner for recording of the statement but neither Advocate nor any officer of respondent No. 3 was present to assist the Commissioner so as the statement of concerned official of R.T.O. could be recorded. No reason has been assigned on behalf respondent No. 3 that why the Counsel or the officer of respondent No. 3 was not present when the case was fixed for recording of the statement at Jhansi. The order whereby the application for appointment of fresh Commissioner was also not challenged. Since there was no evidence on the basis of which it can be proved that the respondent No. 1 was not having the valid licence, learned Tribunal committed error in holding that respondent No. 3 is entitled to recover the awarded amount from respondent Nos. 1 and 2,

In view of this, the appeal stands allowed in part and the findings whereby the right to recover the amount from respondent Nos. 1 and 2 has been given to respondent No. 3, stands set aside. No order as to costs.