Madhya Pradesh High Court
Gajraj Singh Tomar vs Smt. Kasturi on 3 April, 2019
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THE HIGH COURT OF MADHYA PRADESH
M.P. 2462/2018
(Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.)
Gwalior, Dated : 03.04.2019
Shri N.K. Gupta, Senior Advocate with Shri S.D. Singh,
Counsel for the petitioner.
Shri B.D. Verma, Counsel for the respondents No.1 to 5.
Shri B.K. Agrawal, Counsel for the respondent No.8. This petition under Article 227 of the Constitution of India has been filed against the order dated 12.2.2018 and 28.4.2018 passed by 4th Motor Accident Claims Tribunal, Morena in Claim Case No.40/2015 by which the Trial Court had reviewed its order own dated 20.9.2017 without there being any application for review.
2. The necessary facts for the disposal of the present petition in short are that the respondents No.1 to 6 have filed a claim petition against the petitioner as well as respondents No.7 and 8. It appears that the owner of the offending vehicle had filed photocopy of insurance policy which according to respondent No.8 is a forged copy and, accordingly, the respondent No.8 filed an application under Order 11 Rule 12 of CPC for a direction to the owner to produce the original copy of the insurance policy. The Claims Tribunal by order dated 20.9.2017 rejected the said application and directed the respondent No.8 to begin its evidence. Thereafter, it appears that the direction to the respondent No.8 to begin its evidence was reviewed 2 THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.) by the Claims Tribunal by order dated 12.2.2018 and the petitioner was directed to begin his evidence because it is the stand of the Insurance Company that the photocopy of the insurance policy which has been filed by the petitioner is a forged one and, therefore, in case if the Insurance Company is examined in the beginning, then it would become necessary for the Claims Tribunal to recall the witnesses of the Insurance Company after the examination of the petitioner's witnesses. It is not out of place to mention here that the order dated 12.2.2018 was passed by the Trial Court on its own without there being any application for review.
3. Thus, one thing is clear that the respondent No.8 have not expressed any grievance against the order dated 20.9.2017 by which the Insurance Company was directed to begin its evidence.
4. It appears that the petitioner filed a review application against the order dated 12.2.2018 which was rejected by the Claims Tribunal by order dated 28.4.2018 and thus this petition has been filed against the order dated 12.2.2018 as well as the order of review dated 28.4.2018.
5. It is submitted by the counsel for the respondent No.8 that one petition against two orders is not maintainable, therefore, this petition is not maintainable.
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THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.)
6. The petitioner has paid two sets of Court fee, therefore, a single petition arising out of two orders is maintainable.
7. It is submitted by the counsel for the petitioner that the petitioner has already filed a photocopy of the insurance policy. It is the case of the respondent No.8 that the said photocopy of the insurance policy is a forged document and the Insurance Company/respondent No.8 has also lodged a FIR against the petitioner. Thus where the respondent No.8 is already aware of the fact that the petitioner has claimed that the offending vehicle was insured and the Insurance Company has taken a specific stand that the said insurance policy is fake and forged document, then the Claims Tribunal did not commit any mistake in directing the Insurance Company to being its evidence because the petitioner would get an opportunity to rebut the evidence of the Insurance Company with regard to the insurance policy and, accordingly, the Claims Tribunal by order dated 20.9.2017 had directed the Insurance Company to begin its evidence. The Insurance Company was not aggrieved by the said order and, therefore, neither they challenged the order nor they filed any application for review. However, the Claims Tribunal without there being any application for review, has reviewed its own order dated 20.9.2017 and has now directed the 4 THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.) petitioner to begin the evidence. It is submitted that although the review is permissible under the CPC but the same can be done only when there is an error apparent on the face of the record. The Claims Tribunal had directed the Insurance Company to begin the evidence after considering the entire aspects of the matter and thus the Claims Tribunal has committed a material illegality by reviewing its own order dated 20.9.2017.
8. Per contra, it is submitted by the counsel for the respondent No.8 that the Supreme Court in the case of Pappu and others vs. Vinod Kumar Lamba and another reported in 2018(1) T.A.C. 360 (S.C.) has held that unless and until the initial burden is discharged by the owner of the vehicle, the burden would not shift on the Insurance Company and, accordingly, the Claims Tribunal has corrected its mistake by passing the order dated 12.2.2018.
9. Heard the learned counsel for the parties.
10. The Supreme Court in the case of Pappu (supra) has held as under:-
"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? This Court in the case of National Insurance Co. Ltd. (supra), has noticed the defences available to 5 THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.) 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. 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 6 THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.) 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 7 THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.) offending vehicle."
11. Thus it is clear that unless and until the initial burden is discharged by the owner, the burden would not shift on the Insurance Company. In the case of Pappu (supra) the owner had merely mentioned that the person who was driving the offending vehicle was having a valid license. Neither the name of the driver was disclosed nor the owner entered the witness box nor he examined any witness in support of his plea. Under these circumstances, the Supreme Court had come to a conclusion that as the owner had failed to discharge the initial burden and, therefore, it was wrong to say that the burden was still on the Insurance Company. Accordingly, it was held that unless and until any evidence is produced by the owner, the onus never shift to the Insurance Company to rebut such evidence whereas, in the present case the photocopy of the insurance policy relied upon by the owner is already on record and the Insurance Company has specifically taken a stand that the said photocopy is a forged document and the insurance policy was never issued by the Insurance Company. Thus, the Insurance Company is well aware of the documents which have been filed by the owner and the Insurance Company has also lodged a FIR against the owner and under these circumstances it cannot be said that the order dated 20.9.2017 passed 8 THE HIGH COURT OF MADHYA PRADESH M.P. 2462/2018 (Gajraj Singh Tomar, vs. Smt. Kasturi & Ors.) by the Claims Tribunal was bad.
12. Under these circumstances in absence of an error apparent on the face of the record, the Claims Tribunal should not have reviewed its own order dated 20.9.2017.
13. At this stage, it is submitted by the counsel for the respondents No.1 to 6 that the claim petition was filed about four years back and the claim petition is getting prolonged for no reason, as a result of which, the claimants are suffering. The submission made by the counsel for the respondents No.1 to 6 is bonafide and, accordingly, the orders dated 12.2.2018 and 28.4.2018 passed by 4th Motor Accident Claims Tribunal, Morena in Claim Case No.40/2015 are hereby set aside. The Insurance Company/respondent No.8 is directed to begin its evidence as directed by the Claims Tribunal by order dated 20.9.2017. As the claim petition is pending for the last four years, therefore, the Claims Tribunal is directed to decide the claim petition positively within a period of three months from the date of the production of certified copy of this order. No adjournment shall be granted to any of the parties.
14. With aforesaid directions, this petition is allowed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2019.04.05 11:01:27
+05'30'