New India Insurance Company Ltd. vs Vimalbai And Others

Abhay S. Waghwase, J

Feeling dissatisfied by judgment and award passed by learned Member, Motor Accident Claims Tribunal, Aurangabad (Tribunal) in MACP No. 174/2014, original respondent No.3/Insurance Company has preferred instant appeal.

Learned Counsel Mr Deshmukh for appellant would point out that present respondent No.1 instituted MACP No.174/2014 under Section 166 of the Motor Vehicles Act, 1988 (M.V. Act) on account of suffering road traffic accident, resulting into permanent disability. That, in the said accident, there was involvement of two vehicles i.e. Trax bearing registration No. MH-20-AA- 6539 as well as Eicher bearing registration No. MH-11-T-7877, which were insured by original respondent No.3 (present appellant) as well as respondent No.5, respectively.

He further pointed out that, before the Tribunal, present appellant/original respondent No.3 has taken a specific plea that driver of Trax, which was insured by them was not holding effective and valid driving licence at the time of accident and there being breach of policy, Insurance Company was not liable. According to him, however, learned Tribunal has discarded such plea and has rather fixed liability on both vehicles i.e. Trax and Eicher to the extent of 50% each and directed to pay and recover the same by judgment and award dated 20/02/2017. He pointed out that, apart from raising specific defence/plea that, driver of the one of the offending vehicle was not holding valid and effective licence, said driver was also charge-sheeted amongst other provisions for commission of offence under Section 3 r/w 181 of M.V. Act. Thus, according to him, it was abundantly proved that driver was not having effective licence.

He further submitted that, in spite of the above, learned Tribunal has failed to consider and appreciate said plea and defence. In support of his such contention, he seeks reliance on the judgment of Hon'ble Apex Court in the case of Pappu and others Vs. Vinod Kumar Lamba and another, reported in (2018) 3 SCC 208, as well as judgment of this Court dated 13/10/2022 in First Appeal No.41/2018 (United Indian Insurance Company Ltd. Vs. Amarsing Rupchand Pardeshi and others).

Learned counsel for original claimant as well as for respondent No.5 justified the award, however, learned counsel Mr Totala for respondent No.5 endorsed the submission as well as law relied by learned counsel for appellant to be the correct position.

After hearing above submissions, only point involved in this case is whether on account of non-availability of effective and valid licence with the driver of Trax at the time of accident, his insurer can be made liable to share the liability of compensation.

In the judgment impugned herein, learned Tribunal in paragraph No.28, has discussed the evidence/defence raised by present appellant by observing as under :-

"28. The respondent No.3 has examined Milind Sasane as RW1 at Exh-61. He is Clerk in Regional Transport Office. He has produced certificate issued by R.T.O. at Exh-62 and according to the said certificate, the Aurangabad Regional Transport Authority has not issued any license to respondent No.1. He was cross examined, he has stated in his cross examination that from 1998 onwards, the record about issuance of license is computerized. In cross examination, he has admitted that he has not verified the hand written record and cannot surely tell whether respondent No.1 has driving license or does not have driving license. The said witness examined by respondent No.3 is not sure whether respondent No.1 was having valid driving license. The respondent No.3 has not brought any other material evidence on record to show that the respondent No.1 was not possessing valid driving license. Hence, it cannot be held that respondent No.1 was not having valid driving license, at the time of accident. It is seen from the record of the case that offending vehicle bearing registration No. MH-20-AA-6539 was owned by respondent No.2 and insured with respondent No.3. Hence, they are liable to pay half compensation towards the negligence of respondent No.1. The record shows that respondent No.4 was owner of vehicle bearing No.MH-11-T-7877 and the same was insured with respondent No.5. Therefore, respondent No.4 & 5 are liable to pay half the amount of compensation to the claimant."

Thus, learned Tribunal has held that, insurer of Trax vehicle has failed to adduce evidence or materiel to show that respondent No.1 was not possessing valid licence which was the dominant defence of the appellant.

At this juncture, it would be fruitful and relevant to reproduce the observations of the Hon'ble Apex Court in Pappu and others (supra), more particularly, paragraph No.12, which reads thus :-

"12. This Court in National Insurance Co. Ltd. has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person of the person driving the vehicle did not have a valid driving licence. The "onus" would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time."

Going by above law, it is clear that, it was fundamental burden on driver of Trax vehicle who was party respondent in MACP to show that he was having valid and effective driving licence. Only thereafter, the onus would have oscillated to the insurance company.

Appellant/Insurance Company adduced evidence of one Milind Arjunrao Sasane, a Clerk in RTO office Aurangabad and he, in his evidence at Exh. 61, has deposed that his office has verified the computer record and has not found any driving licence issued by their office in the name of Shankar Pandurang Jadhav i.e. original respondent No.1/driver of Trax bearing MH-20-AA-6539 and his office accordingly issued at Exh. 62 a certificate to that extent under the signature of R.T.O. His such testimony ought not to have been discarded on his inability to place on record handwritten record existing upto 1998 and it not being verified by him and he too be not sure about issuance of driving licence. In the considered opinion of this Court, it was primary duty of original respondent No.1/driver of the Trax to place on record document to show that he is possessed with driving licence, more particularly, when there is particular defence by Insurance Company.

Resultantly, order of tribunal is required to be interfered to that extent. Accordingly, following order is passed. :-

O R D E R

I. The judgment and award dated 20/02/2017 passed by learned Member, Motor Accident Claims Tribunal, Aurangabad in MACP No. 174/2014 is modified to the extent that original respondent No.3 (appellant herein) to first pay 50% compensation to claimant as directed by the Tribunal and then recover the said amount from original respondent Nos.1 and 2.

II. The balance amount lying with the Registry of this Court alongwith interest accrued thereon be disbursed to the original claimant.

III. Appeal is disposed of in above terms.