Madhya Pradesh High Court
Jagdish And Anr. vs Rajkumar And Anr. on 29 November, 2000
Equivalent citations: II(2001)ACC68, 2002ACJ1124
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT Shambhoo Singh, J.
1. This appeal is directed by the claimants against the award dated 27.1.1998 passed by 1st M.A.C.T., Mandsaur in Claim Case No. 60 of 1995.
2. The claimants' case was that on 31.1.95 while going on his Hero-Majestic along with Pannalal as pillion rider, respondent No. 2 came from the opposite direction driving truck No. CH 01 D-5088 belonging to the non-applicant No. 1 and insured with respondent No. 3 in a rash and negligent manner and dashed against his moped, as a result of which he sustained injuries and became permanently disabled. He filed claim case seeking compensation of Rs. 7,40,000. The respondents resisted the claim and inter alia pleaded that respondent No. 2 was not having a valid driving licence, therefore, it was not liable to pay compensation. The learned Tribunal on appreciation of evidence held that the accident occurred due to rash and negligent driving of the truck by non-applicant No. 2. The Tribunal awarded compensation of Rs. 2,18,000 with interest at the rate of 12 per cent per annum against non-applicant Nos. 1 and 2 and exonerated the non-applicant No. 3 insurance company holding that at the time of accident non-applicant No. 2 was not holding a valid and effective driving licence. Hence, this appeal by the claimants.
3. Mr. Samwatsar, learned Counsel for the claimants, submitted his arguments only on the point of exoneration of non-applicant No. 3 of its liability to pay compensation. He submitted that the burden of proving that respondent No. 2 was not having valid driving licence on the date of accident was on the insurer, non-applicant No. 3 and he did not produce any evidence, therefore, the Tribunal committed error in absolving the insurance company. On the other hand, Mr. Sanjay Sharma, learned Counsel for the respondents, supported the impugned award.
4. We considered the arguments advanced by learned Counsel for both sides and perused the record. In this case, the non-applicant insurance company did not call the record of driving licence issued by the RTA, Chandigarh. It simply examined Sushil Kumar, NAW 1, who deposed that he made enquiry on phone from the Branch of the insurer at Chandigarh whether the non-applicant No. 2 was having driving licence. He stated that he was informed that respondent Nos. 1 and 2 did not give the particulars of the licence. In our opinion, the evidence of Sushil Kumar has no value on the point. The person who supplied information on telephone ought to have been examined. The record of issuing driving licence is kept by the RTA, this record ought to have been called by the insurer and proved whether respondent No. 2 was not having driving licence. If it is admitted that the respondent Nos. 1 and 2 did not give the particulars of the licence, no adverse inference can be drawn that non-applicant No. 2 was not having valid driving licence on the date of accident. In the case of Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), where in spite of notice of the insurer to the owner and the driver to produce the driving licence, driving licence was not produced, their Lordships of the Supreme Court held that no adverse inference could be drawn against the owner and the driver that the driver was not having a valid licence. Their Lordships observed that the burden of proving breach of the terms and conditions of the policy is on the insurance company and it ought to have proved the same. The owner and the driver cannot be directed to produce evidence in support of the case of the insurer. The insurance company should have called the record of RTA of issuing of driving licence and the Apex Court held the insurance company liable to pay compensation. In view of above, as held above, the insurance company failed to prove that non-applicant No. 2 was not having valid driving licence on the date of accident, therefore, the insurance company could not be exonerated from its liability to pay compensation. In our opinion, the learned Tribunal committed error in exonerating the insurance company of its liability to pay compensation.
5. In the result, the appeal is partly allowed and it is directed that the non-applicants shall pay amount of compensation, i.e., Rs. 2,18,000 to the claimants with interest at the rate of 12 per cent per annum from the date of filing of claim application as directed by the Tribunal. There shall be no order as to costs.