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Judgment
Neelam Sanjiva Reddy, J.—This appeal is directed against the order of the Motor Accidents Claims Tribunal-District Judge, Guntur, passed on 3.4.1989 in O.P. No. 34 of 1987.
The facts culminating in this appeal and necessary for its disposal briefly stated are that Digumarthi Hanumantha Rao, aged 22 years, graduate in Mechanical Engineering and earning Rs. 2,500/- per month in Kalyani Cement Factory, was travelling on the scooter No. AIK 2436 along with pillion rider G. Kishore Kumar from Macherla to Piduguralla. On their way, tractor ATC 2620 with trailer APG 9625 driven in a rash and negligent manner hit them resulting in grievous injuries to Hanumantha Rao and his consequent death. Hanumantha Rao''s father and mother, aged about 46 years and 40 years respectively, filed the above O.P. claiming a total compensation of Rs. 1,50,000/-from the owner and insurer of the tractor and trailer involved in the accident.
The owner and insurer resisted the claim of the petitioners and the insurer took specific defence that the driver of the tractor was not holding a valid driving licence and it was not liable to indemnify the owner against the liability towards the claimants in view of Section 96 (2) of the Motor Vehicles Act, 1939 (for short ''the Act''). The Tribunal, after considering the evidence on record, awarded a total compensation of Rs. 50,000/- against the owner only and dismissed the petition as against the insurer finding that the driver of the tractor was not holding valid driving licence by the date of accident as pleaded by the insurer. Aggrieved by the adverse findings, claimants preferred the appeal.
Learned counsel for the appellants contends that Tribunal arbitrarily awarded the compensation of Rs. 50,000/- and the said assessment is not based on evidence or recognised legal principles. A perusal of the order under appeal amply makes it clear that there is an amount of truth in the submission made by the counsel. Oral and documentary evidence adduced for the claimants establish that the deceased was earning Rs. 2,500/- per month. The deceased being young, his income was more likely to increase, but not decrease. The learned Counsel on both sides submit that considering the age of deceased''s parents, the appropriate multiplier is 12.78 for capitalizing the loss of dependency by taking two-thirds of the annual income of the deceased as multiplicand. Loss of dependency calculated accordingly comes to Rs. 2,55,600/- but the claim is restricted to Rs. 1,50,000/- by the petitioners.
Learned counsel for the appellants submits that the Tribunal erred both factually and legally in accepting the specific defence of the insurer that the driver of the tractor was not holding a valid driving licence and the insurer is not liable to pay any compensation u/s 96(2) of the Act. He relied on a decision of this Court in Oriental Fire and Genl. Ins. Co. Ltd. v. Pavan Kumar 1989 (3) ALT 153, wherein K. Ramaswamy, J. as he then was, held:
(3) u/s 96(2)(b)(ii) of the Motor Vehicles Act, 1939 (for short ''the Act''), the insurer is entitled to raise all the pleas open to it to defend the claim for compensation including the ground that the vehicle was driven by a person who was not duly licensed. Therefore, it is open to the insurance company to raise the plea that the respondent No. 2 was not possessed of a valid licence. Then the question is whether the appellant has discharged the burden. Mr. Mangachary is right in contending that if the appellant has been in possession of evidence and it withheld the same, an adverse inference could be drawn against the appellant. But here it is one of the pleas taken by the appellant. The specific plea taken by the appellant is that the respondent No. 2 is not possessed of a valid licence on the date when the accident had occurred. Therefore, the burden is on the insurance company to establish that fact by adduction of material evidence in that regard, viz., the licence issued by the competent authority and its validity thereof. If some evidence has been adduced by the appellant to show that the driver is not holding a valid licence as on the date of accident, then, necessarily the burden shifts on the driver or the claimant to establish that the driver is having a valid licence. When the appellant has not placed any material before the court, then it is a case of non-adduction of any evidence to substantiate its plea. In an analogous situation, the Supreme Court had to consider a case in Bishan Devi v. Sirbaksh Singh 1979 ACJ 496, Kailasam, J. speaking for the court has considered the circumstances and held at para 12 thus: ''Apart from making the averment in his written statement the insurer did not take any step to establish that the vehicle was driven by a person who was not properly licensed.... It is the duty of the insurer to have substantiated the plea....'' Thus the Supreme Court has starkly put the question that the person who raised the plea, viz., the insurer, the burden is on the insurer to establish by adduction of evidence that the driver is not having a valid licence. In similar circumstances, the Raj as than High Court in Bhairon v. Nandram 1980 ACJ 513, has considered the question where same plea was taken by the insurance company and no evidence was adduced to prove that the driver was not having a valid licence, it was held that the insurance company having failed to adduce evidence in disproof of the fact that the driver is not having a valid licence as on the date of accident the claimant is entitled to compensation claimed as against the insurance company. Thus, it is well settled that if a specific plea is taken by the insurance company u/s 96(2)(b)(ii), it is for the insurer to substantiate the same by adduction of evidence as regards the validity of the licence possessed of by the driver. Mere taking a plea does not amount to proof of the allegation. It is only an averment. Unless it is substantiated by adduction of acceptable evidence the averment or plea cannot be said to have been proved. Unless there is proof of it the question of disproof by the claimant or the driver does not arise.
In United India Insurance Company Ltd., Kurnool Vs. Madiga Thappeta Ramakka and others, , G. Radhakrishna Rao, J. observed:
Mere mention in the criminal court''s judgment about the driver not having a licence, much less a valid driving licence, is not sufficient. It is well established legal principle that the findings given in the criminal court judgments cannot be taken aid and cannot be taken advantage in civil matters. The best method is to summon the driver to produce the driving licence and also to take appropriate steps to examine him. If the driver is summoned and if he has produced the driving licence it is sufficient. If he did not respond to the summons and did not appear nor did he produce the driving licence, an adverse inference can be drawn that he was not holding a valid driving licence. It is also the duty of the insurance company to summon the R.T.A. officials to produce the driving licence as the R.T.A. who issues the driving licence keeps record of the licences issued and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Either of the above two steps has not been taken by the insurance company. The insurance company did not take any effective steps to discharge the burden. The mere filing of the report of the Administrative Investigation Officer, without examining him, does not absolve the responsibility of the insurance company in discharging the burden. The insurance company has not discharged its burden by leading legal evidence. Under the umbrella of Exh. B-1, policy, it cannot take shelter and claim that it has discharged its burden cast upon it.
Coming to the facts of this case, the specific condition of Exh. B-2 policy, the breach of which was pleaded, runs:
Driver: And of the following
(a)
(b)
Provided that the person driving holds a valid driving licence at the time of the accident or has held a permanent driving licence (other than a learner''s) and is NOT disqualified from holding or obtaining such a permanent licence.
The breach of the above condition squarely falls u/s 96(2)(b)(ii) of the Act. In support of defence taken by the insurer, RW 1, who was working as Assistant at Guntur Branch of the insurer, testified that the driver of the tractor had no valid driving licence by the date of accident. Evidently, he had no personal knowledge about the said fact and he did not reveal the basis for his statement. Admittedly, the insurer had not taken steps to examine the driver of the tractor or any official of the concerned Road Transport Authority where the record relating to the driving licence of the driver of the tractor was available.
Learned counsel for the insurer attempted to lay basis for his defence on Exh. A-8, a certified copy of accident report prepared by Motor Vehicles Inspector, in respect of the present accident. Column 17 of Exh. A-8 deals with the particulars of driver''s licence. It is seen from it that the driver of the tractor held licence No. 5422/K/85 ALA Kakinada for light motor vehicles only and it was valid up to 4.6.1988. It is further seen from columns 14 and 17 in Exh. A-8 that VCR No. 114 dated 13.5.1986 was issued against the owner and driver for not holding valid permit and for not having valid driving licence and that it was compounded by paying Rs. 500/-. From the above particulars in Exh. A-8 and considering the nature of the tractor, we can safely infer that the driver was duly licensed to drive the tractor and compounding in VCR No. 114 dated 13.5.1986 be for not holding the valid permit for the tractor or that the driver might not have paid the required fees for driving the vehicle as an employee. In the absence of any attempt on the part of the insurer to establish its defence by summoning the concerned persons and documents, I am inclined to hold that the driver of the tractor was duly licensed and that the insurer has thoroughly failed to establish the exclusion clause against the claimants.
At the end of the arguments, Mr. V.V. Ramanadham, learned Counsel for the insurer, submits that the matter may be remitted back to the Tribunal to enable the insurer to take steps to summon the concerned persons and documents to arrive at just and correct decision in the matter. I am unable to accept this submission in view of the fact that the insurer being a Corporation, was well aware of its duties and responsibilities in respect of the claim of the petitioners and had ample opportunity to adduce evidence in support of its defence.
In the result, the appeal is allowed with costs raising the compensation amount from Rs. 50,000/- to Rs. 1,50,000 with interest at 12 per cent per annum from the date of petition till the date of payment. The owner and insurer are jointly and severally liable to pay the above compensation amount to the claimants. The compensation shall be apportioned equally between the two claimants. The compensation shall be deposited as per the guidelines detailed by the Supreme Court in General Manager, Kerala State Road Trans. Corporation v. Susamma Thomas 1994 ACJ 1 (SC).