Kanti Lal and Others vs Mahendra Kumar and Others

Pratap Krishna Lohra, J.—Appellants, the driver and owner of Jeep bearing registration No. RJ-16-TA-1092, have laid this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ''the Act of 1988'') challenging the impugned judgment and award dated 16th July, 2013 passed by learned Motor Accident Claims Tribunal, Jalore (for short, ''learned Tribunal''). By the award impugned, the learned Tribunal has exonerated the respondent-insurer from its liability to pay compensation and has fastened liability on the appellants.

The facts, in brief, are that the respondent-claimants filed a claim petition under Section 166 read with Section 140 of the Act of 1988 before the learned Tribunal claiming compensation to the tune of Rs. 35 lacs alleging that their kith and kin, Ashok Kumar, sustained grave and serious injuries due to the accident caused by rash and negligent driving of Jeep No. RJ-16-TA-1092. As per respondent-claimants, due to rash and negligent driving of the jeep, the motorcycle plied by Ashok Kumar was hit and that resulted in serious injuries on his hands, legs and face and ultimately he succumbed to the injuries. In the claim petition, respondent-insurer was also impleaded as non-applicant with specific averment that the offending vehicle was insured with the said Insurance Company.

The claim petition was contested by the appellants as well as insurer and the insurer has also adduced its evidence. The driving licence of the first appellant was also produced before the learned Tribunal, which was not found to be genuine by the learned Tribunal. On 21st August 2012, counsel representing the cause of the appellants made a candid statement before the learned Tribunal not to adduce any evidence and consequently their evidence was closed, and thereafter evidence of the Insurance Company was recorded.

It appears that the appellants realized their mistake in not tendering evidence, and therefore, an endeavour was made at their behest to tender evidence. Requisite application is laid before the learned Tribunal on 11th December, 2012 with certain documents. The application is contested by the respondent-insurer.

The learned Tribunal, after hearing the rival submissions, by its order dated 25th June, 2013, rejected the application of the appellants and thereafter within a month passed the final judgment and award on 16th July, 2013. In the final award, the learned Tribunal has noticed a vital fact that the licence, which was produced by the appellants in the name of Kantilal, was not tallying with the requisite record of the licensing authority, Jalore and that being so, considering it to be violation of the policy conditions by the insured, the insurer was exonerated from its liability.

Learned counsel for the appellants, at the very outset, has submitted that without dilating on the merits of the award, the appellants may be granted one opportunity to tender their evidence, which is declined by the learned Tribunal vide order dated 25th June, 2013 for establishing genuineness of the driving licence of first appellant. Mr. Chaitanya Gahlot submits that for doing substantial justice one more opportunity is required to be given to the appellants to adduce their evidence and appellants may not be allowed to suffer on account of some mistake or omission on the part of their counsel representing their cause before the learned Tribunal. Lastly, Mr. Gahlot submits that the entire basis of the impugned award to fasten liability on the insurer is certain discrepancies in the driving licence of first appellant, which the appellant has not be able to clarify, and therefore, in the interest of justice, one opportunity may be allowed to adduce the evidence by way of remanding the matter.

At the outset, Mr. Amit Mehta, learned counsel for the respondent-claimants, has very candidly submitted that he has got no objection if the impugned award is set aside and the matter is remanded back permitting the appellants to adduce their evidence.

Per contra, Mr. Anil Bissa, learned counsel for the respondent-insurer, submits that once a party to the litigation has chosen not to adduce evidence, subsequently it cannot turn around and eschew its own admission to avail the opportunity. Learned counsel, therefore, submits that there is no infirmity much less legal infirmity in the order dated 25th June, 2013. Mr. Bissa further submits that the learned Tribunal has examined the matter threadbare and on noticing a patent discrepancy in the driving licence of the first appellant, in conjunction with the record of the licensing authority, has rightly exonerated the insurer from its liability to pay compensation. Lastly, Mr. Bissa would contend that the order dated 25th June, 2013 is a reasoned order, wherein the learned Tribunal has considered all the pros and cons and the same has finally culminated into award, which warrants no interference in exercise of appellate jurisdiction.

I have heard learned counsel for the parties and perused the impugned award as well as order dated 25th June, 2013.

The only question that requires judicial scrutiny in the instant appeal is the order dated 25th June, 2013, which according to the appellants, is the edifice of the impugned judgment and award. There remains no quarrel that the appellants have joined the issue before the learned Tribunal to contest the claim petition laid by the respondent-claimants and on their behalf reply is also submitted. Learned Tribunal has also granted opportunity to the appellants to adduce their evidence to strengthen their defence but the said opportunity was not availed and on a request being made by the counsel representing their cause evidence was closed. It appears that the appellants felt assured that liability to pay compensation would not be fastened on them as the vehicle is insured with the insurer and there is apparently no breach of the policy conditions or any of the statutory provisions. However, after evidence of the insurer, the hopes of the appellants were belied, and their voluntary decision not to contest the claim effectively proved catastrophic, inasmuch, ultimately a situation has occasioned wherein the learned Tribunal noticed a patent discrepancy in the driving licence produced by the appellants with the relevant record of the licensing authority. This sort of situation facilitated exoneration of the insurer from its liability to pay compensation. It was, in these circumstances, the first appellant made endeavour to submit an application before the learned Tribunal on 11.02.2012 for permitting him to appear in the witness box to prove the genuineness of the driving licence and to tender corroborating evidence. Along with the application, some documents were also annexed to show that there is no discrepancy as such in the driving licence and the record of the licensing authority. In the application, the first appellant has also named his father as one of the witnesses. The learned Tribunal, after considering the application, has taken note of the fact that the first appellant himself has closed his evidence and the requisite driving licence is also available on record, as such it is not desirable to permit him to adduce his evidence at the fag end of the trial.

It is trite that in claim cases the Tribunals are adhering summary procedure and strict rules of evidence are not applicable. However, conversely, it is also true that for adjudicating lis involved in such matters, a Court or a Tribunal is required to make sincere endeavour to unearth truth, and the Insurance Company, which has indemnified on behalf of the insured, may not be allowed to go scot-free on certain technical pretexts. Precisely the object of making motor insurance compulsory is to protect innocent motor accident victims and not to enable the insurers to run on profitable lines on receipt of premium.

True it is that, if there is a clear violation of the terms of the insurance policy, or the statutory provisions by the insured, the Insurance Company cannot be asked to indemnify on behalf of the insured. However, in the peculiar facts and circumstances of the instant case, apparently the appellants closed their evidence under certain mistaken beliefs and subsequently the appellants wanted to avail opportunity to adduce their evidence, in my opinion, substantial justice warrants that at least one opportunity may be given to the appellants to substantiate their defence. It may be noteworthy to observe here that insurer has not set up a defence on the anvil of false or spurious driving license.

It goes without saying that the final award has been passed by the learned Tribunal on the basis of evidence and other materials, which were available on record, except the evidence of the appellants, which were voluntarily not tendered by them. Be that as it may, the fact remains that the mistake on the part of the lawyer cannot come in the way of a litigant to seek substantial justice, and in the present era of social justice even a meanest of mean is required to be given an opportunity to defend his cause effectively. Therefore, on objective consideration of the order dated 25th June, 2013, in my opinion, the said order cannot be sustained inasmuch as while passing the said order, the learned Tribunal has taken too technical a view, without properly appreciating the concept of substantial justice. As the order dated 25th June, 2013 had its direct ramification on the final judgment and award, in totality, the said judgment and award has also become vulnerable, and therefore, cannot be sustained.

In above view of the matter, the order dated 25th June, 2013 as well as impugned award dated 16th July, 2013 are, hereby, quashed and aside, and the matter is remanded back to the learned Tribunal for permitting the appellants to adduce their evidence.

The parties are directed to appear before the learned Tribunal on 27th April, 2015. On that day, the first appellant shall appear with his witness Vajaji (his father) and the learned Tribunal may record their evidence on the same day. The documents, which are sought to be placed on record with the application, shall also be considered by the learned Tribunal in accordance with law.

After recording evidence of the appellants, the learned Tribunal is expected to make endeavour to decide the claim petition afresh, as expeditiously as possible, preferably within a period of two months thereafter.

The record of the learned Tribunal be sent back forthwith.