Kamal Kumar vs Jawaharlal Patel and Others

G. Minhajuddin, J.—These appeals have been filed against the awards dated 18.08.2008 passed by the Additional Motor Accident Claims Tribunal, Sarangarh (Raigarh) in Claim Case Nos. 73/2006 (Jawahar Lal Patel vs. Kamal Kumar & others) and 88/2006 (Jayram Sidar vs. Kamal Kumar & others). Since both the appeals arise out of the same accident caused by Mahendra Jeep bearing registration No. M.P. 26-T/0827, (new number is C.G. 13/ZA/0539), they are being disposed of by this common order. The appeals have been filed u/s 173 of the Mother Vehicles Act, 1988 (for short ''the Act'') by the appellant/owner against the awards dated 18.08.2008 passed in Claim Case Nos. 73/2006 and 88/2006 by the Additional Motor Accident Claims Tribunal, Sarangarh (Raigarh) (for short ''the Claims Tribunal''), in so far as it relates to fastening of liability to pay compensation to the claimants upon the appellant/owner, exonerating the respondent/Insurance Company and at the same time directing the respondent/Insurance Company to first pay the amount of compensation then to recover the same from the owner and driver of the offending vehicle.

Brief facts of the case, as per version of the claimants are that on 8.4.2003 at about 6/7-00 p.m., the applicants/claimants Jawaharlal Patel, Jayram Sidar were returning from Raigarh to village Gudeli on motorcycle. On the way, near Weigh-bridge of village Chhatamuda, the said motorcycle was dashed by the offending vehicle (Mahendra Jeep) bearing registration No. M.P. 26-T/0827, (new number is C.G. 13/ZA/0539) which was being driven by non-applicant No. 4, in a rash and negligent manner, as a result of which the applicants/claimants sustained various injuries. The applicant/Claimants sustained various injuries. The applicant/Claimant (Jawahar Lal Patel) in Claim Case No. 73/2006 and the applicant/Claimant (Jayram Sidar) in Claim Case No. 88/2006 were admitted in Khemka Hospital, Raipur from 9.4.2003 to 23.4.2003 and in District Hospital, Raigarh respectively for their treatment. Though the applicants/claimants were operated but they became permanently disabled. Reports of the incident were given in the Jute Mill City Kotwali Police Station, Raigarh and an offence was registered under Sections 279, 337 and 338 of IPC against non-applicant No. 4 At the time of accident, the applicants/claimants were aged about 30 years and claimant (Jawaharlal Patel) in M.A. (C) No. 482/2009 was earning Rs. 3000/- p.m. and claimant (Jayram Sidar) in M.A. (C) No. 483/2009 was earning Rs. 4000/- per month respectively, by doing agriculture work.

The injured/claimants had filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 (for short ''the Act'') claiming a total amount of compensation of Rs. 11,07,500/- in Claim Case No. 73/2006 and Rs. 5,79,000/- in Claim Case No. 88/2006 for the injuries sustained by them in the accident.

Learned Claims Tribunal on a close scrutiny of the evidence led, material placed and submissions made by the parties, has partly allowed the claim petition and awarded an amount of Rs. 1,85,200/- (in Claim Case No. 73/2006) to application/claimant Jawahar Lal Patel and Rs. 16,000/- (in Claim Case No. 88/2006) to applicant/claimant Jayram Sidar. Non-applicant No. 3/Insurance Company has been directed to pay the amount of compensation along with interest @ 5% per annum from non-applicants No. 1, 2 and 4.

I have heard learned counsel appearing for the parties and perused the record of the Claims Tribunal.

The contention of the learned counsel for the appellant is that the burden to prove that there was breach of terms and conditions of the insurance policy was on the respondent/Insurance Company and the same has not been discharged in the instant case. He has further contended that although photo copy of the driving licence of driver Mohanlal Mehar has been filed by the appellant/owner on 26.07.2008 but the appellant/owner has not been cross-examined on behalf of respondent/Insurance Company with regard to the photo copy of the driving licence. Learned counsel for the appellant has further contended that the claimants/injured were also negligent and they have also contributed towards the accident and the same has not been taken into consideration by the Claims Tribunal. He has further contended that the photo copy of the driving licence of driver Mohanlal Mehar although filed by the appellant/owner was not exhibited and therefore, it cannot be read in evidence against the appellant/owner.

On the other hand, learned counsel for respondent No. 3/Insurance Company has supported the impugned award fastening the liability to pay compensation to the claimants/injured on the appellant/owner. He has further contended that although respondent No. 3/Insurance Company has not challenged the order to pay and recover the same by filing an appeal but in the facts and circumstances of the case, the said order should not have been passed and is not sustainable in the eye of law because the present case is a case of no licence.

It is not in dispute that driver Mohan Lal Sarthi who was non-applicant No. 4 herein was driving the offending vehicle at the relevant point of time. It is also not is dispute that photo copy of the driving licence of one Mohan Lal Mehar S/o. K.D. Mehar has been filed by the appellant/owner himself along with two other documents on 26.07.2008 and on the same date, the appellant/owner has examined himself as witness for non-applicant No. 1. From perusal of the photo copy of the driving licence it is clear that he said photo copy of driving licence is not of the present respondent No. 4, who is also Mohanlal Sarthi, S/o. Chinilal Sarthi. It is no doubt true that the burden to prove breach of terms and conditions of insurance policy is on the Insurance Company. At the same time, it was the duty of the owner and driver of the vehicle to furnish the number of the driving licence, on furnishing which the genuineness of the same can be get verified by the respondent/Insurance Company. The contention of the learned counsel for the appellant/owner that the photo copy of the driving licence cannot be read in evidence as it has not been exhibited, cannot be accepted because the same has not been filed by respondent No. 3/Insurance Company or the claimant but filed by the appellant/owner himself who is the employer of respondent No. 4 Mohan Lal Sarthi as the photo copy of the driving licence was not of the driving licence of respondent No. 4. Therefore, there was no occasion for the learned counsel for the respondent/Insurance Company to cross-examine the appellant/owner with regard to that document. As such second contention of the learned counsel for the appellant/owner also cannot be accepted. From perusal of the photo copy of the driving licence filed by the appellant/owner along with list of documents on 26.07.2008, it is clear that the said photo copy was not a copy of the driving licence of respondent No. 4 Mohan Lal Sarthi. No other licence has been filed before the Claims Tribunal either by the owner of the vehicle or by respondent No. 4/driver. In view of this, it can be safely assumed that respondent No. 4 was not having any valid and effective driving licence on the date of accident. As such the finding given by the Claims Tribunal with regard to breach of terms and conditions of the insurance policy cannot be faulted with, the same deserves to be and is hereby confirmed. In the result, the appeals (M.A. (C) Nos. 482/2009 & 483/2009 filed by the appellant fail and are hereby dismissed.