National Insurance Co. Ltd vs Shiv Kumar And Others

Sanjeev Kumar, J

National Insurance Company (hereinafter referred to as the „insurer‟) is in appeal against the award dated 25.05.2018 passed by the Motor Accident Claims Tribunal, Reasi (hereinafter referred to as the „Tribunal‟) in file No. 20/claim titled "Shiv Kumar vs. Des Raj and others" whereby the insurer has been directed to pay an amount of Rs.3,01,600/- along with pendent lite and future interest at the rate of 6% per annum in favour of the respondents (hereinafter referred to as the „claimants‟).

The impugned award has been assailed by the insurer primarily on the following grounds:

(i) That the driver of the offending vehicle had no valid driving licence and the vehicle was being used as a transport vehicle without having any permit issued by the competent authority. It is submitted that the insurer applied and deposited the witness expenses for securing the attendance of the driver and owner of the offending vehicle along with permit, fitness certificate of the offending vehicle and the driving licence of the driver. The insurer also applied for securing attendance of record keeper of ARTO office along with original record of the basic driving licence No. 2146/J allegedly issued in the name of respondent No.3. It is submitted that the Tribunal ignored its request and did not summon the aforesaid witnesses and, thus, deprived the insurer of an opportunity to prove the said violation.

ii. That in view of the fact that the driver of the offending vehicle was not possessing a valid driving licence and the vehicle being used as a transport vehicle was without any permit, the insurer was required to be absolved of its liability to indemnify the owner and pay compensation to the claimants.

There is no representation on behalf of the respondents.

Heard learned counsel for the insurer and perused the record.

Since the accident in question as also the quantum of compensation awarded by the Tribunal is not in dispute, as such, it would be relevant to reproduce only issue No.2 framed by the Tribunal which runs as under:

"Whether the vehicle referred to above at the relevant time was being driven against the terms and conditions of the insurance policy and driver of the vehicle was not holding a valid driving licence as on the date of accident, and if so, what is its effect on the claim of the petitioner ? OPR3

As is evident, the onus of proof of the aforesaid issue was on the insurer which, with a view to discharge it, produced DW Des Raj and PW 2 Sobit Kumar Administrative Office of the Company as its witnesses. 7 The only grievance projected by the insurer is that despite the fact that it had duly applied for assistance of the Tribunal for summoning of witness i.e record keeper from the office of ARTO Jammu and had also deposited his expenses, the requisite steps under law were not followed by the Tribunal. It is submitted that the best person to state with regard to the validity of the driving licence of the driver was the official from the concerned RTO office, however, the Tribunal did not summon the said witness despite depositing his expenses. The Tribunal, thus, erroneously concluded that the aforesaid issue had not been proved by the insurer by leading any evidence.

From the perusal of interlocutory orders passed by the Tribunal from time to time, it appears that a lot of efforts was made by the Tribunal to summon the record keeper of ARTO office Jammu on many occasions, even non-bailable warrants were issued against him. At one stage, i.e on 17.02.2017, one Krishan Lal, Head Assistant from the office of ARTO Jammu was present, but his statement could not be recorded due to absence of the claimant and his counsel. Thereafter, he was again summoned through bail and non-bailable warrants, but his presence could not be procured. Lastly, the Tribunal vide its order dated 23.02.2018 issued non-bailable warrants for summoning of witness and the relevant record. Learned Advocate for the insurer was also directed to give fresh particulars with regard to the record required to be produced by the office of ARTO.

It appears that the fresh particulars as directed by the Tribunal vide its order dated 23.02.2018 were not supplied by the insurer and, therefore, the Tribunal vide its order dated 16.03.2018 closed the evidence of the insurer and fixed the matter for arguments. The matter was adjourned on 12.04.2018 and was finally heard on 04.05.2018 when the arguments were concluded and the matter was fixed for judgment on 25.05.2018.

Perusal of interlocutory orders passed by the Tribunal from time to time reveal that the insurer failed to furnish particulars of record as directed by the Tribunal and, in these circumstances, the Tribunal was left with no option, but to close the evidence and fix the matter for arguments. The insurer did not object to the closure of evidence, nor did it make any application for recalling of order of closure of evidence and securing the presence of record keeper from the office of ARTO. In that view of the matter, I am not inclined to accept the contention of learned counsel for the insurer that the Tribunal committed illegality in not issuing the process for enforcement of the attendance of its witness i.e record keeper from the office of ARTO Jammu.

For the foregoing reasons, I do not find any infirmity, illegality or perversity in the impugned award that may call for an interference by this Court. As a result, the appeal is dismissed.