Shri Ram Trading vs Khuma and Others

Sandeep Mehta, J.—The instant appeal is preferred by appellant, Shri Ram Trading, through its owner Devkishan against the judgment-cum-award dated 29.7.2011 passed by the learned Judge, M.A.C.T., Udaipur whereby the respondent Nos. 1 and 2, the claimants, were awarded a sum of Rs. 3,50,000 as compensation for the death of their son Punjilal. Respondents filed a claim petition before the learned Tribunal praying for compensation to the tune of Rs. 18,79,000 for the death of their son Punjilal who was employed as a labourer in a mine at Balesar. It was averred in the claim petition that while the deceased was working in the mine, a truck No. RJ 19-G 5987 owned by the appellant on which a compressor had been attached overturned because of rash and negligent use thereof by its driver and as a result Punjilal working at the mine was crushed under the vehicle and expired. The Tribunal decided the claim in favour of the claimants and awarded a sum of Rs. 3,50,000 as compensation to the claimants.

The defences raised by the insurance company regarding the vehicle being plied without a valid permit and the driver not having a valid licence to drive the transport vehicle were upheld and it was exonerated from the liability to satisfy the award. The appellant owner and the driver of the vehicle were held jointly and severally liable to satisfy the award. However, applying the principle of pay and recover, the insurance company was directed to satisfy the award and thereafter to recover the same by filing execution proceedings. Appellant who is the owner of insured truck has approached this court by way of instant appeal against the aforesaid direction.

Mr. D.L.R. Vyas, learned counsel for the appellant, vehemently urged that the defences taken by the insurance company were wrongly accepted by learned Tribunal. He submitted that the pleading of the insurance company was not commensurate with the defences and thus, the learned Tribunal erred in discharging the insurance company from the liability to satisfy the award. He relies on the decisions rendered by the Apex Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, ; Bondar Singh and Others Vs. Nihal Singh and Others, and National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, and the decisions of this court in United India Insurance Company Ltd. Vs. Smt. Deobai and Others, ; Shriram General Insurance Co. Ltd. Vs. Sharwan Lal and Others, ; United India Insurance Co. Ltd. v. Raisa, 2001 (4) WLC (Raj) 479; National Insurance Co. Ltd. v. Sundari, 2011 (4) CDR 1654 and the decision of the High Court of United India Insurance Co. Ltd. Vs. Prakashi Devi and another, . It was submitted that the burden of proof for establishing the defences to the hilt was upon the insurance company but as the insurance company failed to provide appropriate proof in this regard, Claims Tribunal was unjustified in accepting the plea raised by the insurance company.

Per contra, Mr. N.K. Joshi, appearing for the insurance company, vehemently opposed the submissions advanced by the learned counsel for the claimants. It was urged that the insurance company by filing an affidavit of authorised officer took a specific defence that the vehicle in question had been adapted by attaching a heavy compressor. The insurance company had not insured the vehicle for the adaptation. A specific plea was also taken that the driver of the vehicle was not having a valid licence to drive the same. Learned counsel brought to the notice of this court, the driver Kana Ram''s D/L verification report, Exh. A2, and the certificate, Exh. A3, issued by the D.T.O.-cum-Licensing Authority, Jodhpur. He submits that according to the certificate, Exh. A3, issued by the D.T.O.-cum-Licensing Authority, the driver of the vehicle, viz., Kana Ram Sankhla was having a licence to drive the motor cycle with gear and light motor vehicle for the period effective from 1.6.2002 to 19.3.2021. The additional endorsement made on the licence to drive a transport vehicle was effective for the period between 22.5.2008 and 31.5.2011. Learned counsel submits that as on the date of accident, i.e., 16.3.2007, the driver was not having a valid licence to drive a transport vehicle and as such there is a clear cut breach of the policy conditions. He further submitted that owner did not place on record a permit of the vehicle and thus also, there was a breach of the policy conditions. Thus it is urged that the insurance company proved its defence and was rightly exonerated from the liability to satisfy the award.

I have heard learned counsel for the parties and have gone through the record.

The certified copy of the licence held by the driver Kana Ram is available on record along with the police papers filed by the claimants. The licence distinctly bears the endorsement that the driver was authorised to drive a transport vehicle from 30.6.2005 to 31.5.2008. The certificate, Exh. A3, is silent in this regard. There is a direct contradiction between the licence available on the record and in the certificate, Exh. A2, which was given by the Investigator of the insurance company and the certificate, Exh. A3, issued by the D.T.O.-cum-Licensing Authority, Jodhpur. It was no case of the insurance company that the licence held by Kana Ram was forged.

On the issue of the modification of the vehicle and the breach of the policy conditions thereby, the Tribunal at para 13 of the judgment noticed that the vehicle in question was insured as a transport vehicle and that there was no violation of the policy conditions because a compressor machine was loaded thereupon. The defence raised by the insurance company in this regard was discarded.

At the same time, Claims Tribunal at para 16 of the judgment held that the owner of the vehicle did not place any permit on record and thus, the plea raised by the insurance company that the vehicle was being used without a valid permit was accepted.

In the opinion of this court, the burden of proof in this regard was purely on the insurance company. The insurance company did not lead any evidence to prove that the vehicle in question was being operated without a valid permit. The verification report, Exh. A2, is silent on this aspect. The Tribunal was in error in shifting the burden onto the owner of the vehicle for establishing that the vehicle was being operated under a valid permit. The insurer''s witness only made a bald allegation that the vehicle was being plied without a valid permit. The duty and the burden to establish this fact being on the insurance company, it was required to make a thorough inquiry that no permit was available for plying the vehicle. Admittedly, no such inquiry was conducted by the insurance company.

Thus this court is of the opinion that the Claims Tribunal was unjustified in accepting both the defences raised by the insurance company in counter to the claim application and in holding the owner and driver of the insured vehicle to be jointly responsible to satisfy the award. The insurance company failed to discharge its burden as the defences raised by the insurance company regarding the validity of the licence held by the driver and regarding the vehicle being operated without a valid permit were not proved by it rather stand contradicted by the evidence available on record.

Thus, the appeal deserves to be accepted. The findings recorded by learned Tribunal regarding the issue No. 3 that the vehicle was being plied without a valid licence and that it was being operated without a valid permit are illegal and contradictory to the material available on the record and are liable to be reversed.

Consequently, the misc. appeal is allowed. The award dated 29.7.2011 passed by the learned Judge, M.A.C.T., Udaipur, is modified. Now, the owner and driver of the insured vehicle in question and the insurance company shall all be jointly and severally responsible to satisfy the award. The direction given by the learned Tribunal giving liberty to the insurance company to first pay the compensation and then to recover the same from the appellant is set aside.

The appeal succeeds accordingly.

No costs.