Rajasthan High Court - Jodhpur
Mangu & Anr vs Surya Prakash & Anr on 3 October, 2012
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.CIVIL MISC. APPEAL NO.566/2006
Mangu & Anr.
Vs.
Surya Prakash & Anr.
Date of Judgment :: 3rd October, 2012
HON'BLE MS.JUSTICE NIRMALJIT KAUR
Mr.Vineet Jain, for the appellants.
Mr.Sunil Ranwa on behalf of Mr.Manish Shishodia, for the respondent No.1-claimant. Mr.L.D.Khatri, for the respondent No.2-Insurance Company.
<><><> This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 26.7.2005 passed by Motor Accident Claims Tribunal, Gulabpura in M.A.C. Case 33/2001, whereby the Tribunal has passed award of Rs.2,22,000/- against the appellant and exonerated the Insurance Company of its liability.
A claim petition was filed by respondent No.1 alleging inter alia that on 1.8.1999 at about 12:00 noon, he was riding Modu Ram's motorcycle RJ-20 3M 2214 and going towards Dhani Bhawsagar when Harlal who was riding his motorcycle bearing No.RJ-20 1 M 0668 came from the opposite direction and while driving his vehicle rashly and negligently collided with the 2 motorcycle on which he was travelling. As a result of this accident, he received injuries on his right leg and other parts of the body. He suffered permanent disability upto 50%.
Information regarding the alleged accident was given at Police Station Shahpura. After investigation, a charge-sheet was also filed against Harlal. The claim was filed on the ground that the accident was caused on account of rash and negligent driving by Harlal and there was no fault of Modu Ram. The claimant claims that prior to the accident, he worked as a driver with Modu Ram, who paid him a salary of Rs.2500/- per month. After the accident, the claimant who was a driver by profession was unable to work. Accordingly, claim petition claiming compensation of Rs.2,22,207/- under various heads was filed by him.
The Tribunal issued notices to the non-claimants. The non- claimants No.1 & 2, the present appellants, filed their reply to the claim petition. They specifically took the plea in their reply that on the relevant day, the claimant was riding the motorcycle of Modu Ram and they were carrying a bag containing Gram flour of about 20 kg. As a result, Modu Ram could not balance the motorcycle and the said accident took place on account of negligence of Modu Ram.
The Tribunal on the basis of the pleadings of the parties framed 6 issues for determination. After recording the evidence of the parties, the Tribunal vide judgment and award dated 26.7.2005 awarded Rs.2,22,000/- as compensation to the 3 claimant-respondent No.1 to be paid by the appellants and exonerated the Insurance Company from its liability. Aggrieved thereby, the appellants Mangu and Harlal have filed the present appeal.
The main argument raised by learned counsel for the appellant is that the trial court erred in exonerating the Insurance Company, the respondent No.2, from its liability by holding that since at the time of accident Harlal was not having valid licence, therefore, the Insurance Company is not liable. It was further argued that the examination of Shri Kishan Joshi by Insurance Company with regard to the notice given to the appellant Mangu to produce the license of the driver is not sufficient to prove that the driver was not having a valid license on the date of alleged accident. Further, the absence of response by the driver Harlal in no way proves that the appellant Harlal was not having a valid license on the date of the accident and thus, exoneration of the Insurance Company is unsustainable in the eye of law.
Reliance was placed on the judgment of Hon'ble Apex Court in the case of Rukmani & Ors. Vs. New India Assurance Co. & Ors., reported in 1999 Supreme Court Cases (Cri) 244 and the judgment of this Court rendered in the case of Yogesh Vs. Smt.Roop Kanwar & Ors, reported in 2002(3) DNJ [Raj.] 1061 to argue that the burden of prove is on the Insurance Company and issuance of the notice to the owner and driver of the offending vehicle in itself was not sufficient to prove its stand. 4
Learned counsel for the respondent- Insurance Company on the other hand stated that the driver Harlal did not have the license of any kind on the date of the accident and he himself was not examined. Further, no license was produced by the owner or driver during the police investigation nor at the time of adjudication of the claim petition. The Insurance Company had made efforts by giving notice to the owner/driver for producing the license. The police papers revealed that in the absence of driving licence, charge-sheet for offence under Section 3/181 of the Motor Vehicle Act was filed. Thus, the Insurance Company was rightly absolved.
Reliance was placed on the judgment of this Court rendered in National Insurance Company Ltd. Vs. Shri Prabhu Lal, reported in 2007 R.A.R. 546 (Raj.), the judgment of Division Bench of the High Court of Jharkhand at Ranchi rendered in the case of Ajit Kumar Mohanty Vs. Papa Devi Mahali & Ors., reported in 2011 ACJ 1081, the judgment of Hon'ble Apex Court in the case of United India Insurance Co. Ltd. Vs. Gian Chand & Ors., reported in AIR 1997 Supreme Court 3824 and in Bhuwan Singh Vs. M/s Oriental Insurance Company Ltd. & Anr., reported in JT 2009(3) SC 333.
Heard.
The facts in the present case are not disputed. It is not disputed that notices were sent by the Insurance Company to the owner/driver for producing the driving licence. Harlal who is driver and son of the appellant No.1 Mangu duly appeared and filed 5 affidavit praying for time to produce the driving licence but subsequently, did not appear nor produced driving licence.
Thus, the only question that requires to be decided in the present case is as to whether the onus to prove that the driver had valid driving licence or not is on the Insurance Company and if 'yes', then whether sending of notice is sufficient to discharge the burden of proof.
Learned counsel for the appellant has referred to the judgment of the Hon'ble Apex Court in the case of Rukmani & Ors. Vs. New India Assurance Co. & Ors. (supra), vide which, it was held that where the driver did not have a valid license, evidence of Inspector Police who investigated the accident to show that the driver was not able to produce the driving licence in itself was not sufficient to discharge burden cast upon the Insurance Company. Para 3 of the said judgment reads as under:-
"We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the the Inspector of Police, stated in his examination-in-chief, "My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after may demand did not submit the licence since he was not having it." In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licene since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has 6 not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs."
Hon'ble the Apex Court in Narcinva V.Kamat & Anr. Vs. Alfredo Antonio Doe Martings, reported in (1985) 2 Supreme Court Cases 574 was further pleased to hold that the insured is under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability. The relevant para 14 of the said judgment reads as under:-
"The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, an adverse inference be drawn against him that he did not have a valid licence to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company."
Relying upon the said judgment, this Court in the case of Yogesh Vs. Smt.Roop Kanwar & Ors. (supra) held in para 8 which is reproduced below that in order to prove its case, the Insurance 7 Company can produce authoritative documents duly testified by official of the State Transport Authority:-
"8. Under the circumstances, it cannot be said that the insurance company has established by legal evidence that the driver of the offending vehicle was not holding a valid licence on the relevant date of the accident. In this view of the matter, the learned Tribunal committed error in arriving at the finding that the insurance company has sufficiently discharged its onus to prove that the driver Hanif Khan was not having a valid driving Licence at the time of the accident and, therefore, the insured owner committed a willful breach of the terms and conditions of the insurance policy. This finding is based on wrong appreciation of the material on record and deserves to be set aside. Issuance of notices to the owner and driver of the offending vehicle by the insurance company to produce the driving licence would neither enable the insurance company to prove its objections nor any adverse inference can be drawn against the insured. The driving licence is issued by the State authority i.e., the concerning Transport authority and it is the onus of the insurance company to prove its case of the insured committing breach of the terms and conditions of the insurance policy by allowing the vehicle to be driven by a person not having a valid driving licence by leading relevant evidence by way of production of authoritative documents duly testified by examination of some official of the Department. Such is not the case in the present matter. "
On the other hand, learned counsel for the respondent has referred to the judgment rendered by this Court in the case of National Insurance Company Ltd. Vs. Shri Prabhu (supra). Even as per this judgment, the burden to prove is on the Insurance Company. However, contrary to the ratio of the judgment rendered in the case of Rukmani & Ors. Vs. New India Assurance Co. & Ors. (supra) and Narcinva V.Kamat & Anr. Vs. Alfredo Antonio Doe Martings (supra), it has been held that sending of the notice 8 was sufficient and in case the owner fails to produce the driving licence or fails to appear in evidence, an adverse inference should be drawn against the owner. While holding so in para 8, the learned Single Bench have relied upon the judgment rendered by the Hon'ble Apex Court in the case of United India Insurance Co. Ltd. V. Gian Chand & Ors. (sura), which reads as under:-
"Once the Insurance Company had taken the stand before the Tribunal that the driver did not possess any licence, it was for the owner to prove the fact that the driver did, indeed, possess a valid licence at the time of alleged accident. For, the owner has to establish that he has fulfilled all the conditions of the Insurance policy. Once the conditions of the policy is that the vehicle must be driven by a person possessing a valid licence, until & unless, this factum is proved by the owner, he cannot escape from the liability of paying the compensation to the injured claimant. Since the owner in the present case did not discharge this burden, the learned Tribunal should have drawn adverse inference against him. Our view is fortified by the decision in the case of United India Insurance Co. Ltd. Vs. Gian Chand & Ors., (AIR 1997 SC 3824) where in the Hon'ble Supreme Court had observed that once the notice was issued to the owner, it was for the owner to first establish that the driver was having valid licence. In case the owner falls to prove this fact, an adverse inference should have been drawn against the owner.
However, a perusal of the judgment rendered by the Hon'ble Apex Court in the case of United India insurance Co. Ltd.
Vs. Gian Chand & Ors. (supra) reveals that it was an admitted position in the said case that driver did not have the driving licence and it was in those circumstances that Hon'ble the Apex Court held that since it was not the case of the owner that he did not know that the driver whom the vehicle was handed over was 9 not having a valid licence, no fault can be found with the finding reached by the Tribunal as well as by the the High Court holding the said owner liable. Para 10 of the judgment reads as under:-
"We fail to appreciate how the aforesaid decision can be of any avail to learned counsel for the respondents-claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No.1 who was permitted to drive the vehicle by respondent No.9, the insured, was admittedly not having any driving licence. It was not the case of respondent No.9, the insured, that he did not know that respondent No.1 whom the vehicle was being handed over was not having a valid licence. In fact, once he did not step in the witness-box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No.1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the Insurance Company of its obligation as the statutory defence became available to it. The High Court, even though agreeing with the finding of the fact reached by the Tribunal, has in our view, by misconstruing the ratio of the decision of this Court in Skandia Insurance Co. Ltd. V. Kikolaben Chandravadan, (1987 2 SCC 654: (AIR 1987 SC 1184) (supra), erroneously held that the said defence was not available to the Insurance Company on the facts of the present case."
Thus, the judgment of the Hon'ble Apex Court in the case of United India Insurance Co. Ltd. Vs. Gian Chand & Ors. (supra) was in a situation where it was admitted that the driver did not have the licence. As such, the same does not help the respondents.
The second judgment of Ajit Kumar Mohanty Vs. Papa Devi Mahali & Ors. (supra) is a judgment rendered by the Division of the High Court of Jharkhand at Ranchi, in which, judgments 10 rendered by the Hon'ble Apex Court in the case of Rukmani's and Narcinva V.Kamat's case (supra) have neither been noticed nor considered.
The respondent has referred to yet another judgment rendered in the case of Bhuwan Singh Vs. M/s Oriental Insurance Compay Ltd. & Anr. (supra). In the said case, the insurance company had raised the contention that the driver of the tractor was not holding a valid and effective licence, but was holding only a learner licence and it was stated that he had applied for his regular licence after accident which was granted to him. Since, it was the stand of the appellant therein himself that he had learner licence and he had applied for a regular licence, the Hon'ble Apex Court held that the said fact being on his own knowledge, he was required to show the same. Thus, to that extent, the said judgment of Hon'ble the Apex Court has deviated from the earlier judgments rendered in the case of Rukmani & Ors. Vs. New India Assurance Co. & Ors. (supra) and Narcinva V.Kamat & Anr. Vs. Alfredo Antonio Doe Martings (supra).
Be that as it may, the judgment rendered in the case of Bhuwan Singh Vs. M/s Oriental Insurance Company Ltd. & Anr. (supra) relied on by learned counsel for the appellant is of later point of time. The judgments rendered by Hon'ble the Apex Court at the earlier point of time i.e. Rukmani's case (supra) as well as Narcinva V.Kamat's case (supra) laying down that the notice to the owner and driver to produce the driving licence in itself was 11 not sufficient to absolve the Insurance Company from discharging its burden to prove its stand was neither noticed nor considered by Hon'ble the Apex Court in its judgment rendered in Bhuwan Singh's case (supra), which is of later point of time.
Hon'ble the Apex Court in the case of Union of India & Ors. Vs. Godfrey Philips India Ltd., reported in MANU/SC/0193/1985 while considering the different views expressed in two different judgments rendered by Hon'ble the Apex Court in Motilal Sugar Mills Vs. State of Uttar Pradesh, reported in MANU/SC/0336/1978 and subsequently in Jeet Ram Vs. State of Haryana, reported in MANU/SC/0335/1980 rejected the judgment in the case of Jeet Ram's case as the earlier judgment rendered in the case of Motilal's case (supra) on the same point was not considered. Para 12 of the judgment rendered in Union of India & Ors. Vs. Godfrey Philips India Ltd. (supra) reads as under:-
"There can therefore be no doubt that the doctrine of promissory estoppal is applicable against the Government in the exercise of its governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppal. We must concede that the subsequent decision of this Court in Jeet Ram v. State of Haryana, MANU/SC/0335/1980:
[1980]3SCR689 takes a slightly different view and holds that the doctrine of promissory estoppal is not available against the exercise of executive functions of the State and the State cannot be prevented from exercising its functions under the law. This decision also expresses its disagreement with the observations made in Motilal Sugar Mills case that the doctrine of promissory estoppal cannot be defeated by invoking the defence of executive necessity, suggesting by necessary implication that the doctrine of executive necessity is available to the Government 12 to escape its obligation under the doctrine of promissory estoppal. We find it difficult to understand how a Bench of two Judges in Jeet Ram's case could possibily overturn or disagree with what was said by another Bench of two judges in Motilal Sugar Mills case. If the Bench of two Judges in Jeet Ram's case found themselves unable to agree with the law laid down in Motilal Sugar Mills case, they could have referred Jeet Ram's case to a larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motilal Sugar Mills case. We have carefully considered both the decisions in Motilal Sugar Mills case and Jeet Ram's case and we are clearly of the view that what has been laid down in Motilal Sugar Mills case represents the correct law in regard to the doctrine of promissory estoppal and we express our disagreement with the observations in the Jeet Ram's case to the extent that they conflict with the statement of the law in Motilal Sugar mills case and introduce reservations cutting down the full width and amplitude of the propositions of law laid down in that case."
Coming back to the present case, no doubt the notices were issued to the driver/owner, however, the driver Harlal who is son of the owner, appellant No.1, did not appear in witness box. The Insurance Company was always at liberty to approach the Transport Authority to have discharged its burden by leading relevant evidence by way of either producing the relevant documents, testified by the official of the Department or summoning the record of the Transport Authority to show that the driver did not have a valid licence.
Thus, in view of the said proposition of law as laid down by Hon'ble the Apex Court in the case of Rukmani & Ors. Vs. New India Assurance Co. & Ors. (supra) and Narcinva V.Kamat & Anr. Vs. Alfredo Antonio Doe Martings (supra), it is held that the 13 issuing of the notice and the failure of the driver to respond, in itself, is not sufficient to discharge the Insurance Company of the burden to prove that the driver of the offending vehicle did not have a valid license.
Accordingly, the civil misc. appeal is partly allowed. The finding of learned Tribunal on issue No.4 is set aside and judgment and award dated 26.7.2005 is modified to the extent that the respondent-Insurer is held jointly and severely liable to pay the amount of compensation along with appellant-owner.
(NIRMALJIT KAUR), J.
NK