Andhra HC (Pre-Telangana)
National Insurance Company Limited, ... vs Illapu Seethamma And Others on 2 November, 1999
Equivalent citations: II(2000)ACC757, 2001ACJ328, 2000(2)ALD265, 2000(2)ALT455, 2000 A I H C 1637, (2000) 2 ACC 757, (2000) 2 ANDH LT 455, (2000) 2 TAC 361, (2000) 3 CIVLJ 183, (2000) 2 ANDHLD 265, (2001) 1 ACJ 328
JUDGMENT
1. There are altogether nine appeals preferred by the Insurance Company against the common award made by the Tribunal dated 24-7-1995 which pertains to single accident occurred on 25-3-1991 at about 3.00 p.m. at Panasapadu and Chavitidibbalu. There are two cases which pertain to death whereas the other seven relates to injuries sustained by the persons. The Tribunal clubbed 8 OPs., in view of the fact that the OPs., are arising out of a single accident and they were disposed of by the impugned order. Since all the OPs., arise out of the same accident, the appeals are disposed of by a common order.
2. The only ground raised by the Insurance Company is with regard to its liability jointly and severally to pay the compensation. The brief facts of the case are as follows:
In respect of OP No,346 of 1991 the wife of the deceased filed a claim petition under Section 166 of Motor Vehicle Act claiming a compensation of Rs. 1,00,000/-. The Tribunal on appreciation of both oral and documentary evidence and on consideration of evidence of PW2 who is an eye-witnesses to the accident, and after considering the issues in respect of negligence on the part of the driver of tractor cum trailer Bearing Nos.ATP 6663 and 6664 and also after taking in to account the monthly earnings of" the deceased and followed the appropriate multiplier and granted a compensation of Rs. 66,500/-.
3. In OP No.289 of 1991 the claimant is mother of the deceased who filed a claim petition under Section 166 of Motor Vehicle Act claiming a compensation of Rs. 1,00,000/- towards death of her daughter aged about 13 years and the trial Court after considering the evidence of eyewitnesses PW2 held that there was negligence on the part of the driver of the tractor cum trailer and assessed the compensation reasonably after taking into account the earnings of the deceased and also the age by adopting the multiplier method and awarded a total compensation of Rs.47,000/- together with 12% interest from the date of petition till realisation. This OP was disposed of separately by the Tribunal.
4. The remaining seven OPs. pertain to injury cases and were disposed of by a common order.
5. In OP No.529 of 1991 against which CMA No.191 of 1996 is filed, the Tribunal has assessed the compensation with regard to the injuries sustained by the claimant and awarded a sum of Rs.6,000/-. In OP No.560 of 1991 against which CMA No. 187 of 1996 arise the Tribunal on appreciation of evidence awarded a compensation of Rs.6,000/- towards injuries sustained to claimant. In OP No.530 of 1991 against which CMA No.190 of 1996 arise, the Tribunal on appreciation of evidence awarded a sum of Rs.5,000/- as compensation towards injuries sustained to claimant. In OP No.526 of 1991 against which CMA No.189 of 1996 arise, the Tribunal on appreciation of evidence awarded a sum of Rs.5,000/- towards compensation for injuries caused.
6. Learned Counsel for respondents Mr. G. Ramgopal contended that since the value of appeals is less than 10,000/- so these appeals are barred under Section 173(2) of Motor Vehicle Act. I find some force in the contention advanced by the learned Counsel for respondent. Section 173(2) of Motor Vehicle Act reads as follows:
"No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees".
7. Accordingly, I dismiss the said four appeals i.e., CMA Nos.187, 1989, 190 and 191 of 1996.
8. In respect of OP No.531 of 1991 against which CMA No.192 of 1996 arise, the Tribunal on appreciation of both oral and documentary evidence awarded a sum of Rs.10,000/- towards injuries sustained to the claimant.
9. In respect of OP No.499 of 1991 against which CMA No.188 of 1996 arise, the Tribunal after taking into account Ex.A7 wound certificate which clearly show that the claimant sustained grevious injuries awarded a compensation of Rs.21,500/- for injuries sustained to claimant.
10. Learned Counsel for appellant vehemently contended that since the driver of tractor cum trailer was not possessing valid driving license and in view of the report of the Motor Vehicle Inspector Ex.A2 the Tribunal ought not to have imposed the liability on the Insurance Company and thus the Insurance Company is exonerated of its liability in view of the Act as the driver of the vehicle was not having a valid license as on the dale of accident.
11. Respondent No.2 has filed a counter affidavit stating that the driver of the tractor cum trailer who is an employee was having a valid driving license. The Tribunal on consideration and appreciation of the evidence and in the absence of any policy filed by the Insurance Company and also in absence of any pleading to the effect and proving the said fact by adducing oral and documentary evidence on behalf of the Insurance Company, imposed the liability jointly and severally including third respondent herein who is appellant herein.
12. Counsel for the appellant has drawn my attention to the decision of Supreme Court in Suresh Mohan Chopra v. Lakhi Prablru Dayal, , and contended that in the absence of any driving license produced by the second respondent herein, the oral evidence can not be given any importance, and accordingly, the Insurance Company is not liable to pay the compensation. I do not agree with the contention advanced by the learned Counsel for appellant on the ground that in the absence of pleading that the owner of the tractor cum trailer has entrusted this vehicle to an unlicensed driver who is responsible for the accident and particularly in the absence of any evidence adduced on behalf of the Insurance Company so as to disbelieve the same. However, in the counter affidavit there is mere denial saying that the driver was not having any valid license. I have perused the judgment of the Apex Court (supra) wherein the Apex Court held that the burden of proof lies on the Insurance Company to prove the plea that first respondent had no driving license at the relevant time. On the basis of which it can be held that the said respondent did not have the driving license.
13. In the instant case, the appellant herein has not filed any policy and they have not adduced any oral or documentary evidence so as to contend that the driver of the tractor cum trailer was not possessing a valid license. In the absence of any specific plea and proving the fact by adducing documentary evidence, the burden of proof shifts on the Insurance Company. In view of the decision of the Apex Court, the Insurance Company can not contend that the Insurance Company is not liable to pay the compensation jointly and severally.
14. The Apex Court in Sohan Lal Passi v. P. Sesh Reddy, , considered the scope of Section 96(2)(b)(ii) and 1 and held as follows:
"Defence of breach of the condition under Section 96(1) Rights of the LRs., of the victim should not be defeated on technical ground of men contravention of the condition prescribed under Section 96(2)(b)(ii) irrespective of the fact that the insured had not allowed the vehicle to be driven by an unlicensed person but had instead taken precautions to comply with the condition by appointing a licensed driver -- Motor Vehicles Act, 1988 -- Section 149."
15. This Court in The Oriental Fire and General Insurance Company Limited v. Pavan Kumar, 1989 (1) ALT 15, had considered the scope of Section 149(2)(a)(ii) of Motor Vehicle Act, 1988 and held as follows:
"Plea of Insurance Company that driver of a vehicle which caused accident was not having valid licence. No evidence adduced by the company in that behalf-Court can draw an adverse inference and award compensation to claimant against the company."
16. This Court in United India Insurance Company Limited v. Madiga Thappeta Ramakka, II (1995) ACC 294, has examined the liability of the Insurance Company to disown its liability to pay compensation in the absence of any effective steps to discharge the burden of proof. It is held that Insurance Company has not discharged its burden by leading legal evidence. Under the umbrella of Ex.B1 policy, it can not take shelter and claim that it has discharged its burden cast upon it. A duty is cast upon the Court on the application of the Insurance Company to take appropriate steps to summon the driver and examine him. It is also the duty of the Insurance Company to summon the RTA officials to produce the driving licence. Either of the above two steps has not been taken by the Insurance Company. The Insurance Company cannot therefore, disown its liability to pay compensation.
17. The Apex Court in Rukmani v. New India Assurance Company, , had an occasion to consider the scope of Section 96(2)(b)(ii) and held that the Insurance Company has not discharged the burden cast upon it under Section 96(2Xb)(ii) of the Motor Vehicles Act by adducing any evidence -- The Insurance Company failed to discharge the burden cast upon it.
18. Following the decisions referred above, I am of the considered view that the appellant has failed to discharge the burden cast upon it by not adducing any evidence. There are no merits in the above CMAs., and accordingly all the CMAs. are hereby dismissed. No costs.