Karan Singh Vs Manoharlal and Others

S.K. Dubey, J.@mdashThis is an appeal u/s 110-D of the Motor Vehicles Act, 1939, for short "the Act" filed by the claimant against the award dated 5th May, 1984 passed in Claim Case No. 89 of 1976 by the 1st Additional Member, Motor Accident Claims Tribunal, Indore.

2. Short facts leading to this appeal are that the appellant-applicant, at the relevant time, was 14 years of age and was coming on his cycle on 24-1-76 at 1.30 P.M. towards Betma on the left side of the road. Near the Machal rest house, non-applicant No. 1 came on motor cycle No. MPN 3406 in a high speed, driving rashly and negligently from Machal side, and dashed the appellant on his wrong side of the road, as a result of which the appellant, who was on his left side of the road, fell down and was thrown at a distance of about 15 feet. The appellant received grievous injuries and a fracture in the right thigh. The appellant''s cycle was also damaged. The claimant filed an application u/s 110-A of the Act and claimed compensation for the injuries and damage to the cycle to the tune of Rs. 65,400/-. The respondents denied the claim and contended that at the relevant time, respondent No. 2 was driving and not respondent No. 1, with slow speed on the left side of the road. The Insurance Company supported the pleas raised by the owner and the driver and also contended that as the driver (non-applicant No. 1) was not holding a valid driving licence, according to the terms of the policy, the insurer is not liable to idemnify the owner of the vehicle and to pay the compensation.

3. At the trial, respondent No. 1 Manoharlal did not examine himself. Respondent No. 2 Jagdish examined himself. The Tribunal, after recording of evidence, held that respondent No. 1 Manoharlal was driving the motorcycle and the accident occurred due to rash and negligent driving of Manoharlal. The Tribunal also awarded compensation of Rs. 12,100/-for the injuries and damage to the cycle. The award was passed against non-applicants No. 1 and 2 only. The insurer of the vehicle was exonerated holding that Manoharlal (respondent No. 1) had not been examined and it has not been proved that he was possessing and holding a valid driving licence as the insured i.e. the owner of the vehicle, allowed a person, i.e. respondent No. 1 Manoharlal in the present case, to drive the vehicle, who was not possessing a valid driving licence. As such, in terms of the policy of insurance Ex. D-3, the Insurance Company was not liable to pay compensation.

4. Shri H.S. Rajpal, learned Counsel for the claimant, contended that the compensation awarded by the Tribunal is too low and that the finding of the Tribunal exonerating the Insurance Company is perverse. The Insurance Company has not discharged its burden to prove that respondent No. 1 Manoharlal was not holding a valid driving licence on the date of the accident and the vehicle was being driven against the terms of the Insurance Policy. Learned Counsel placed reliance on the case of the Apex Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, . Learned Counsel for the appellant also contended that interest ought to have been awarded at the rate of 12% per annum from the date of application till payment instead of @ 6% per annum, as awarded by the Tribunal.

5. Smt. Meena Chaphekar, learned Counsel for respondents No. 1 and 2, contended that the Tribunal, on an erroneous approach, has exonerated the Insurance company. Learned Counsel contended that merely giving notice to the owner of the vehicle to produce licence is not sufficient nor any admission, if any, of the owner that respondent No. 1 was not holding a valid driving licence at the relevant time, can bind respondent No. 1 nor the Insurance Company can be absolved. Non examination of the driver (Non-applicant No. 1 Manoharlal in the present case) has no effect. The Insurance Company ought to have produced the evidence of the Regional Transport Office concerned and other material cogent evidence, to prove the fact that the respondent No. 1 was not holding a valid driving licence to drive the vehicle as the vehicle was being driven at the relevant time by an unlicensed driver, according to the terms of the policy, the Insurance Company is not liable to pay. Learned Counsel further contended that this defence u/s 96(2) of the Act is not available to the Insurance Company. Learned Counsel placed reliance on the cases of the Apex Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, and Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, and the Division Bench cases of this Court in Shajadibai v. Babookhan and Ors. Vol. 1 1988 ACC 24 : Ruby General Insurance Co. Ltd. Vs. Kesharbai and Others, and Ambaram v. Ravindra Kumar 1981 (1) MPWN. 298. Learned Counsel contended that it is the liability of the Insurance Company to pay compensation and the Tribunal was wrong in absolving the Insurance Company from payment of compensation.

6. Shri M.L. Dhupar, learned Counsel for the Insurance Company, contended that in these cases, the burden of the Insurance Company to prove that the driver (non-applicant No. 1) was not holding a valid driving licence and the vehicle was being driven in breach of the terms of the policy, is amply discharged and, therefore, the Tribunal rightly arrived at the finding. In support of his contention, learned Counsel took me through the record of the Tribunal and contended that a notice to produce the driving licence was served on non-applicant No. 1 but the licence was not produced. Moreover, the Tribunal did not examine himself, who is the real brother of the owner of the vehicle. Moreover, in cross-examination by the Insurance Company, the owner PW 2 Jagdish Prasad, has admitted that he has not seen the driving licence of Manoharlal (non-applicant No. 1) and he cannot say the number of the licence or the date of its issue in favour of Manoharlal. Learned Counsel also contended that a notice was issued by the Insurance Company on 31-5-77 and 5-7-77 to the owner of the vehicle to produce the driving licence of Manoharlal but it was not produced. In such circumstances,, learned Counsel for the Insurance Company, relying on the case reported in The New India Assurance Co. Ltd. Vs. Lakhi Ram Prabhu Dayal and Others, of the Delhi High Court, contended that the Insurance Company has discharged its burden and as such the Tribunal rightly absolved the Insurance Company.

7. After hearing the learned Counsel, I am of the opinion that this finding of the Tribunal, so far it absolved the Insurance Company, deserves to be set aside. With this modification in the award, the appeal deserves to be dismissed. Now, it cannot be disputed that when the Insurance Company takes the plea that it is not liable to pay compensation or to idemnify the insured as the driver was not holding a valid licence for driving the vehicle on the date of the accident and the vehicle was being driven in breach of the terms of the policy, the Insurance Company has to discharge the burden by placing legal and cogent evidence before the Tribunal (see the case of the Apex Court in 1985 ACJ 397 (supra) : and the Division Bench cases of this Court in 1986 ACJ 485 (supra), vol. 1, 1988 ACC 24 (supra); and 1981 (1) MPWN Note No. 298 (supra).

8. Admittedly, in the present case, the driver of the vehicle has not been examined though a notice dated 25-1-78 to produce document i.e. driving licence, was served on the counsel for the non-applicants No. 1 and 2, but no driving licence was produced in response to the notice. There is no evidence on record either of the Regional Transport Officer or of any other witness, either documentary or oral, except the statement of DW-I Jagdishprasad, the owner of the vehicle. In para 12, this witness has stated that his relations with non-applicant No. 1 Manoharlal were strained; hence, in response to the notice of the Insurance Company, he did not contact Manoharlal and produce his licence before the Insurance Company. He also admitted that he cannot give the number and the date of issue of licence in favour of Manoharlal. Except this, there is no other evidence led by the Insurance Company to substantiate its contention. The Apex Court in the case of Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, observed that when the Insurance Company complains of a breach of the term of contract, which would permit it to disown its liability under the contract of insurance, the burden is squarely on the Insurance Company to prove that the breach has been committed by the other party to the contract. The rest in such a situation would be ''who would fail, if no such evidence is led''. With this principle of law in view, the evidence has to be judged. Merely non-production of licence or non-examination of the driver of the vehicle is not enough nor any adverse inference can be drawn against the person holding that because of non-examination of the driver or non-production of the licence, the burden is discharged by a mere question in cross examination nor the owner is under any obligation to furnish the evidence so as to enable the Insurance Company not to riggle out its liability under the contract of insurance. However, the RTA who issues the driving licence, keeps record of the licence issued and renewed by him and the Insurance Company could have got the evidence produced to substantiate its defence. Not only, this, no enquiries were made by the Insurance Company from the RTA concerned regarding the fact of issue of a driving licence to Manohar Lal. Hence, it would not give rise to an adverse inference about respondent No. 1 being an unauthorised driver (see the Division Bench case of this Court reported in Vol. 1 1988 ACC 24 (Supra).

9. The contention of the learned Counsel for the Insurance Company was that notice to produce the driving licence was given during the trial and in response to that notice, the driving licence was not produced. Therefore, the Tribunal was right in raising an adverse inference. By this notice, at the most, the Insurance Company wanted a disclosure or discovery of the document. Under order 11 CPC, the object of such a discovery is'' to save expenses and time to shorten the litigation. The Tribunal did not pass any order for production of documents but a discretion as envisaged Under Order 11 Rule 12 CPC or Under Order 11 Rules 14 CPC was not exercised by issuing an order for discovery. Hence, the Tribunal was wrong in raising an adverse inference and it cannot be said, in such circumstances, that the Insurance Company was not bound to produce any legal evidence to discharge the burden. As stated earlier, the object of notice is to save time and expenses only, the cost or the expenses of such evidence could have been imposed on the owner or the driver of the vehicle and nothing more, if in response to the notice, the licence was not produced, the Insurance Company ought to have called for the record of the R.T.A. or could have produced other evidence.

10. From the above discussion, I am of the opinion that the Insurance Company has not discharged its burden by leading legal evidence and the Tribunal was wrong in arriving at a finding and in absolving the Insurance Company under the umbrella of exclusion clause that the respondent No. 1 was not holding any valid driving licence. The Single Bench decision of the Delhi High Court in Dashmesh Bus Service (Regd.) Vs. Jagir Kaur and Others Co. Ltd., is of no help to the Insurance Company wherein the driver, who was a mechanic, appeared as a witness before the Tribunal and stated that he had a driving licence at the time of accident, but failed to produce any particulars of the licence. He also stated that he had destroyed the same after its expiry. A witness on behalf of the R.T.A. was examined, who stated that the office is unable to trace the licence in the absence of definite particulars. In these circumstances, the story propounded by the mechanic was not believed that after its expiry, the licence was destroyed and it is unimaginable that a person, who is a mechanic, would destory his licence after its expiry. It was in these circumstances, that an adverse inference was drawn against the driver of the vehicle.

11. As regards enhancement of the compensation after going through the evidence on record, I am satisfied that the award of compensation for the injuries is just and proper. Shri H.S. Rajpal, learned Counsel for the appellant, could not place any law or authority, or from the facts of the case that the award is too low of adequate. Hence, in my opinion, no interference is called for in appeal for enhancing the amount of compensation so awarded by the Tribunal. The award of interest is also discretionary from the date of the application. Moreover, this being not a fatal case, I do not think it proper to enhance the rate of interest also for a period of twelve years.

12. The result is that this appeal is allowed with costs. It is directed that the Insurance Company shall satisfy the award and pay or deposit the amount of compensation of Rs. 12,100/- (Twelve Thousand and One hundred) with interest @ 6% per annum, from the date of application till the date of deposit, with costs as awarded by the Tribunal and also by this Court. The amount shall be deposited by the Insurance Company within six weeks from today. In case of default, the amount under award shall carry interest @ 12% per annum from today. Counsel''s fees Rs. 500/-(Rupees Five Hundred), if certified.