Suresh Kumar Chopra vs Jog Raj and Ors.

Sandeep Sharma, J.

1.Being aggrieved and dis-satisfied with the impugned award dated 30.4.2012, passed by the learned Motor Accident Claims Tribunal-II, Kangra at

Dharamshala, in MAC Petition No. 59-P/2006, whereby learned tribunal below, while holding the respondents/claimants No. 1 to 3, (herein after

referred to as claimants), entitled to compensation to the tune of  8,10,000/-, held the present appellant i.e owner of the vehicle, liable to pay sum of `

5,82,000/- alongwith 7.5 % p.a., from the date of filing of the petition till its realization, appellant has approached this Court in the instant proceedings,

praying therein for setting aside the aforesaid impugned award.

2.For having bird’s eye view, facts necessary for adjudication of the case are that claimants filed a petition under Section 166 of Motor Vehicles

Act, seeking therein compensation to the tune of Rs. 16 lacs on account of death of Banti, who at that relevant time, was serving in Indian Army.

Claimants, who claim themselves to be dependent upon deceased Banti, stated before the tribunal below that deceased, who was 24 years of age at

that relevant time, was earning Rs. 8,000/- p.a. Allegedly, on 6.2.2006, Banti, while coming on Scooter met with an accident with a truck bearing No.

PB-07-A-9237, being driven by Yashbir Pal, who has since expired. Claimants alleged that accident occurred on account of rash and negligent driving

of the aforesaid driver and as such, they are entitled to be compensated.

3.Present appellant, who was respondent No.1, before the Tribunal below, refuted the aforesaid claim of the claimants and claimed that accident

occurred on account of rash and negligent driving of the deceased and as such, claimants are not entitled to compensation as claimed in the petition.

Respondent Insurance Company refuted the claim of the claimants on the ground that driver of offending truck was not having valid and effective

licence to drive the vehicle and as such, it is not liable to pay any compensation to the claimants. Insurance company also submitted before the learned

tribunal below that accident occurred on account of negligence on the part of the driver of the said scooter. On merits, insurance company also denied

that deceased, at that relevant time, was working in Indian Army and was earning income @ Rs. 8,000/-.

4.On the basis of aforesaid pleadings adduced on record by the respective parties, Tribunal framed following issues:-

1.Whether the deceased Banty has died in an accident with the offending vehicle bearing registration No. PB-07A-9235 on 6.2.2006 at place Menjha,

Tehsil Palampur, Distt. Kangra, H.P.? OPP.

2.If issue No.1 is proved in affirmative to what amount of compensation the petitioners are entitled and from whom? OPP.

3.Whether the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident?OPR.

4.Whether the offending vehicle was no insured at the time of accident?OPR

5.Whether the vehicle was being plied without fitness certificate, route permit and registration certificate and thereby violated the terms and conditions

of the insurance policy?OPR

6.Whether the driver of the scooter has contributed towards the accident?OPR.

7.Whether the petition is bad for non- joinder of necessary parties?OPR.

8.Wehther the petition is not maintainable, as alleged?OPR.

9.Relief.

5.Learned tribunal below on the basis of evidence adduced on record by the respective parties, held the appellant liable to pay 70% of the

compensation amount determined by it. In total, tribunal below awarded a sum of ` 8,10,000/- in favour claimants, but on account of contributory

negligence committed on the part of the deceased Bunty, deducted 30 % amount i.e. ` 2,43,000/-. After aforesaid deduction, Tribunal held present

appellant liable to pay a sum of ` 5,82,000/-alognwith interest 7.5% p.a.

6.Mr. M.L. Sharma, learned counsel for the appellant, while refuting the correctness of impugned award passed by the learned tribunal below,

strenuously argued that finding returned by the Tribunal below qua issues No. 3 and 5, is contrary to the evidence available on record and as such,

same deserves to be quashed and set-aside. Mr. Sharma, while referring to the zimini orders, passed by the learned tribunal, also contended that

during pendency of the claim petition, fitness certificate, route permit and registration certificate, were placed on record and as such, learned tribunal

below ought not have returned finding that the vehicle in question was plied without fitness certificate, route permit and registration certificate. He

further contended that even otherwise, onus to prove this issue was upon the Insurance Company not upon the appellant-owner. He further contended

that finding returned by the Tribunal below qua issue No. 3 is also contrary to the law laid down by the Hon’ble Apex Court in judgment titled

“National Insurance Company Ltd. v. Sawarn Singh and Ors, (2004) 3 SCC 297, wherein it has been specifically held that Insurance Company is

not entitled to take defence that at the time of accident, driver was not having valid licence. Lastly, Mr. Sharma, contended that even during pendency

of the present appeal, factum with regard to the placing of documents i.e. fitness certificate, route permit and registration certificate, was brought to

the notice of this Court and this Court had specifically directed the Insurance Company to ascertain the correctness of the same, but despite there

being specific direction, no steps were taken by the Insurance Company to verify the correctness and as such, adverse inference is required to be

drawn against the Insurance Company. Mr. Sharma, also placed reliance upon the judgment passed by the High Court of Bombay in case titled New

India Assurance Company Ltd., v. Mangala and Ors., (2009) Acci. C.R. 816 (Bom.), to contend that since driver of the vehicle had expired on

16.5.2006, i.e. before filing of the claim petition, plea of driver’s having no valid licence, was not available to Insurance Company, because

presumption of absence of driving licence would have been available only to Insurance Company, in case driver was alive and he had come to the

witness box.

Mr. G.C. Gupta, Senior Advocate, duly assisted by Ms. Meera Devi, Advocate, representing respondent No.5, supported the impugned award

passed by the tribunal below and contended that finding returned by the learned tribunal below qua issue Nos. 3 and 5 is strictly in consonance with

material adduced on record as well as law laid down by the Hon’ble Apex Court and as such, present appeal deserves to be dismissed being

devoid of any merits. While refuting the arguments advanced by Mr. M. L. Sharma, learned counsel representing the appellant that plea of

driver’s having no valid licence is/was not available to Insurance Company in terms of judgment rendered by the Hon’ble Apex Court in

Sawaran Singh’s case supra, Mr. Gupta, contended that onus was upon the appellant, who happened to be owner of the offending vehicle, to

prove that driver of offending vehicle was having valid license at the time of the accident. While inviting attention of this Court to the written statement

filed by the appellant to the claim petition filed by the claimants, Mr. Gupta, contended that no defence to the effect that driver of offending vehicle

was not having valid licence at the time of accident, was taken, rather only defence taken was that accident occurred on account of rash and negligent

driving of the deceased Banty. In support of his aforesaid argument, Mr. Gupta, invited attention of this Court to the judgment passed by the

Hon’ble Apex Court in case titled “Pappu and Ors. v. Vinod Kumar Lamba and Anrâ€, (2018) 3 SCC 208, and contended that Insurance

Company is entitled to take the defence that offending vehicle was being driven by an unauthorized person or that person driving vehicle did not have

a valid driving licence. He further stated that onus is shifted only after owner of offending vehicle pleads and proves basic facts within his knowledge

that driver of offending vehicle was authorized by him to drive vehicle and was having a valid driving licence at that relevant time. Lastly, Mr. Gupta,

contended that no much reliance can be placed upon the judgment rendered by the Hon’ble High Court of Bombay, because in terms of aforesaid

judgment passed by the Hon’ble Apex Court, onus to prove that driver of the offending vehicle was having licence, is /was on the owner of the

vehicle.

I have heard learned counsel for the parties and gone through the records of the case.

Primarily, appellant is aggrieved with the finding returned by the learned tribunal qua issues No. 3 and 5, whereby Tribunal below has come to a

conclusion that at the time of accident, driver was not having valid licence and vehicle in question, was being plied in contravention of terms and

conditions contained in the policy given by the Insurance company qua the offending vehicle. Before ascertaining the correctness of aforesaid rival

contentions having been made by the learned counsel representing the parties, it may be noticed that though zimini orders passed by the learned

tribunal suggests that documents i.e. fitness certificate, route permit and registration certificate, were placed on record by the appellant, but having

perused record, this Court finds considerable force in the argument of learned Senior Counsel that no application, if any, for leading additional

evidence, was ever filed by the appellant and as such, mere placing of documents, may not be sufficient to conclude that at the time of accident,

vehicle in question was not being plied in contravention of the terms and conditions of the Insurance policy. It also emerges from the orders passed in

the instant proceedings that factum qua placing of documents referred herein above, was brought to the notice of this Court and in response thereto,

learned Senior Counsel had taken time to verify the correctness of the same, but this Court is of the view that once documents placed or intended be

placed on record, were not proved in accordance with law, no benefit, if any, can be drawn/taken from the same by the appellant.

10.Reliance is placed on judgment titled National Insurance Company v. Bimla Devi and Ors, Latest HLJ 2005 (HP) 160, relevant

para whereof, is reproduced herein below:

“7. It is a cardinal, basic and established principle of evidence law that documents, other than public documents are tendered in evidence through

witnesses who, after taking oath prove the documents appropriately as well as the contents of the documents, by way of leading direct evidence.

Actually documents are produced and proved through witnesses and their contents also established and proved either by way of primary evidence or

secondary evidence but in any event the established and accepted mode of proving documents is by production of witnesses in the court who testify

about the correctness, genuineness and authenticity of the documents as well as they contents, mostly through the medium of proving them as and by

way of, primary evidence and in certain given situations through the medium of secondary evidence. The purpose of course is twofold; firstly that such

a witness appearing in the court is sworn and under oath testifies about a particular document, its genuineness and authenticity as well as its

correctness and secondly once under oath and examination, this witness is subject to cross-examination by the opposite party so that the opposite party

through the mechanism of cross examination of such a witness can elicit appropriate information concerning the document itself with respect to its

veracity, truthfulness, background, correctness etc. Enough indication of such requirement of law is found in Section 62 of the Evidence Act which

refers to the documents as primary evidence and clearly suggests that such documents can be produced for the inspection of the court meaning

thereby that through witnesses alone the documents have to be brought on record of the courts. Similarly under Section 63 of the Evidence Act,

‘secondary evidence’ has been defined and reading together these two Sections, it can be safely said that documents, either by way of

‘primary evidence’ or otherwise have to be appropriately and properly proved by their production in the courts through witnesses alone.â€​

11.There is no dispute that driving licence, if any, possessed by the driver of the offending vehicle was not produced on record. Interestingly, in the

case at hand, appellant neither specifically pleaded in his written statement that driver of truck at the time of accident was having valid and effective

licence, nor he categorically stated that he had ascertained the correctness of the driving licence possessed by the driver engaged by him on his truck.

If written statement filed by the appellant is perused in its entirety, only defence taken by the appellant owner is that accident occurred on account of

rash and negligent driving of the deceased Banti.

12.Having carefully perused judgment passed by the Hon’ble Apex Court in Pappu’s case supra, wherein admittedly reference has been

made by the Hon’ble Apex Court to its earlier judgment passed in Sawaran Singh’s case, this Court is inclined to agree with the contention of

learned Senior Counsel representing the Insurance company that onus would only shift on the insurance-company, if owner of offending vehicle pleads

and proves basic facts within his knowledge that driver of offending vehicle was authorized by him to drive vehicle and was having a valid driving

licence at that relevant time. In the case at hand, there is no specific pleading that driver was having valid licence, moreover, appellant chose not to

examine himself in the witness box to state that driver of offending vehicle was having valid licence and vehicle in question was not being plied in

violation of terms and conditions of the policy. In the judgment referred herein above, Hon’ble Apex Court, following Sawarn Singh (supra), has

categorically held that insurance company is entitled to take a defence that offending vehicle was driven by an unauthorized person or that person

driving vehicle did not have a valid driving licence. It is profitable to take note of following para of aforesaid judgment passed by the Hon’ble Apex

Court here in below:-

“11. The question is: whether the fact that the offending vehicle bearing No.DIL-5955 was duly insured by respondent No.2 Insurance Company

would per se make the Insurance Company liable?

12.This Court in the case of National Insurance Co. Ltd. (supra), 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 or 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.

13.In the present case, the respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending

vehicle DIL-5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides,

the respondent No.1 did not enter the witness box or examine any witness in support of this plea. The respondent No.2 Insurance Company in the

Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid

driving licence. The respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh,

without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in

question at the relevant time. Only then would onus shift, requiring the respondent No.2 Insurance Company to rebut such evidence and to produce

other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the

respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle.

The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established

by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid

driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of

the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of

the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts

are pleaded and proved by the owner of the offending vehicle.

14.In the present case, the Tribunal has accepted the claim of the appellants. It has, however, absolved the respondent No.2 Insurance Company from

any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was

driving the offending vehicle at the relevant time.â€​

13.Having perused aforesaid judgment passed by the Hon’ble Apex Court, there appears to be no illegality and infirmity in the findings returned by

the learned Tribunal below qua issues No. 3 and 5 and as such, same deserves to be upheld.

14.As far as reliance placed by the learned counsel for the appellant on the judgment passed by the High Court of Bombay in Assurance Company

Ltd., v. Mangala and Or’s, is concerned, this Court is of the view that same is not applicable in the present facts and circumstances of the case,

especially in view of the aforesaid law laid down by the Hon’ble Apex Court in Pappu’s case supra.

15.True it is that in the aforesaid judgment passed by the High Court of Bombay, it has held that presumption of absence of driving licence would have

been available only in the event of driver was alive. No doubt, in the case at hand, as clearly emerges from the record, driver of offending vehicle had

expired prior to the commencement of proceedings under MV Act, but

as has been noticed above, onus to prove that driver of the offending vehicle was not having valid licence, at that relevant time, would have only

shifted to the insurance company, had owner of the offending vehicle pleaded and proved basic facts that driver of the offending vehicle was

authorized by him to drive vehicle and was having a valid driving licence. But unfortunately, in the case at hand, neither there is a plea to this effect

nor appellant has examined himself in the witness box to prove aforesaid fact, if any.

16.In the instant case, learned Tribunal below on the basis of evidence available on record, came to the conclusion that accident in question occurred

on account of contributory negligence of driver of truck owned by the appellant and deceased Banti, who at that relevant time, was driving the scooter

and as such, this Court is persuaded to agree with the contention of Mr. Sharma, learned counsel for the appellant that Tribunal below ought to have

apportioned liability equally between owner of the vehicle and the deceased, who died in accident and as such, tribunal below has erred in holding the

deceased Bunti, liable to the extent of 30 % instead of 50 %. Accordingly, this Court deems it fit to modify the award to the aforesaid extent only.

17.Consequently, in view of the above, present appeal is partly allowed to the aforesaid extent and appellant is held liable to pay 50 % of the award

amount i.e. ` 4,05,000/- + ` 10,000/-(loss of estate) + ` 5,000/- (funeral expenses) total ` 4,20,000/- plus interest along with interest. Rest of the award is

upheld. In view of the aforesaid modification, respondent insurance company shall be depositing the aforesaid award, with the registry of this Court,

within a period of six weeks. Needless to say amount, if any, deposited by the appellant-owner would be released in favour of the claimants and same

would be adjusted towards the liability of the insurance company. Pending applications also stand disposed of, if any.