H.K. Rathod, J.@mdashHeard learned Advocate Mr. Vibhuti P. Nanavati for appellant and learned Advocate Mr. Dakshesh Mehta for respondent No. 3 and learned Advocate Mr. MTM Hakim for respondent No. 6 to 10.
2. By filing this appeal, appellant insurance company has challenged common award made by Claims Tribunal (Main) Banaskantha District at Palanpur in so far as it relates to claim petition No. 149 of 1992 dated 2nd September, 2008 wherein claims tribunal has awarded compensation of Rs. 3,11,260.00, out of which, amount of Rs. 1,24,504.00 is payable by opponents No. 2 and 3 jointly and/or severally and an amount of Rs. 1,86,756.00 is payable by opponents No. 5 and 6 jointly and severally with interest thereon at rate of 9 per cent per annum from date of petition till payment along with proportionate costs of petition. Therefore, appellant insurance company - original opponent No. 5 in claim petition No. 149 of 1992 has challenged award made against it.
3. Learned Advocate Mr. Nanavati for appellant insurance company has submitted that deceased Dashrathbhai was not employed by owner of jeep because he was working as senior clerk in Narmada Project, Main Canal Sub Division. He also raised contention that deceased driver Dashrathbhai was held negligent to extent of 60 per cent by claims tribunal and, therefore, he was tort feasor, therefore, not entitled for compensation his own wrong and, therefore, claims tribunal ought not to have awarded compensation to heirs of deceased Dashrathbhai. He also submitted that in claim petition also, claimants have not made averment that deceased was employed by owner of jeep and, therefore, in view of that, as deceased was not employed by owner, risk of driver was not covered under insurance policy issued by appellant in favor of owner of jeep. He also raised contention that IMT 19 has been wrongly interpreted which is not applicable to facts of present case because deceased driver was not employed by owner on date of accident and he cannot be considered to be a third party within the meaning of Section 147 of MV Act and, therefore, as per his submission, claims tribunal has erred in making an award in favor of claimants and against appellant insurance company. He submitted that deceased was not employed by owner but on date of accident, being relative of owner, for some social purpose, he was driving jeep vehicle and, therefore, his risk has not been covered under insurance policy. Except that, no other submission has been made by learned advocate Mr. Nanavati before this Court and no decision was cited by him before this Court.
4. Learned Advocate Mr. Hakim for respondents claimants has submitted that claims tribunal has rightly examined matter and has rightly made award in question in favor of claimants and in doing so, no error has been committed by claims tribunal requiring interference of this Court. As per his submission, appeal is preferred by appellant for an amount of Rs. 1,86,756.00.
5. I have considered submissions made by both learned advocates. I have also perused impugned award made by claims tribunal, especially award made in claim petition No. 149 of 1992. Before claims tribunal, owner of truck and owner of jeep were joined as party respondent No. 2 and 4. Both remained absent though duly served by claims tribunal. Brief facts of present appeal are as under:
On 2.9.1991, at about 11.00 p.m. To 12.00 mid night, deceased Mohanlal Valjibhai, deceased Hargovanbhai Thakarshibhai, deceased Thakkar Vallabhram Shambhulal, deceased Thakkar Raghuram Mansukhram, one Vasudevbhai alias Vinayakbhai and others were going in the offending vehicle (jeep) bearing Registration No. GAE-3646 to Bhiladi and Deesa. Deceased Dashrathlal Thakarshibhai Thakkar was driving said offending jeep. When said jeep was proceeding on Radhanpur Deesa Highway Road, near Ranakpur, offending vehicle (truck) bearing No. GRX 3633 was lying on road in stationary condition facing Thara without back lights on. As a result, driver of offending jeep Dashrathlal due to dazzling light of on coming traffic from Deesa side, could not see offending truck No. GRX 3633 lying on road and therefore offending jeep dashed behind truck as a result of said collision, all inmates of jeep including driver sustained grievous injuries and except Vasubhai alias Vinayakbhai Thakkar, all of them succumbed to injuries and Vinayakbhai Thakkar sustained severe injuries. Therefore, group of claim petitions were filed before claims tribunal. It was case of applicants that driver of truck had not kept back lights on and had also not put any obstruction up to a distance of about 50 to 100 ft. cautioning other vehicles coming behind that there is some danger ahead and if it would have been done by driver of truck, then, driver of offending jeep would have become cautious and could have controlled offending jeep and could have avoided accident.
Reply was filed by present appellant at Exh. 38 contending inter alia that claim or any part thereof is not admitted unless specifically admitted in written statement and each facts mentioned in claim petition have been denied but no positive case has been put up before claims tribunal Palanpur. It is necessary to note that appellant insurance company has not raised contention in its written statement that driver of offending jeep was not employed by owner of jeep and his risk is not covered under policy of insurance. There is also no contention raised that insurance company is not liable to pay any amount of compensation because IMT 19 which has been relied upon by other side is not applicable to case when driver was not employed by owner and, therefore, it appears that such contention was not raised in written statement filed by appellant before claims tribunal and also not argued said contention before Claims Tribunal and it has been raised before this Court for the first time.
It is also necessary to note that appellant insurance company is not challenging finding given by claims tribunal in respect of issue of negligence between both drivers. Insurance company has also not challenged quantum decided by claims tribunal in favor of claimants. Sole contention raised by appellant is that driver was not employed by owner and driver cannot be considered to be paid driver, driver was working as senior clerk in Narmada Project and, therefore, he cannot be considered to be paid driver of owner when accident had taken place.
Therefore, I have considered this sole contention raised by appellant before this Court through learned advocate Mr. Vibhuti Nanavati. It is also necessary to note one important aspect that this contention even not argued by advocate for insurance company before claims tribunal. Apart from facts that whether claimant has made averments in claim petition or not, whether deceased was employed by owner or not but appellant must raise such contention and must press same into service and must prove it by producing necessary evidence to that effect. In such a case when insurance company is relying on terms and conditions of policy of insurance, then, burden is on insurance company to prove how it is not liable to pay compensation. Therefore, mere denial of each and every contention of claimant is not enough but such positive contentions ought to have been raised by it, and then ought to have been proved before claims tribunal which has not been done by appellant. Appellant insurance company remained silent about employment of driver by owner of jeep or not. Therefore, claims tribunal also not decided this issue because it was not raised by appellant insurance company before Tribunal. In view of this back ground, one important aspect is that if any contention is to be raised by any party, it is duty of such party to prove that contention by producing proper evidence or producing genuine documents in respect of such contention which has not been done by appellant in this case before claims tribunal. There is no oral/documentary evidence produced by appellant to establish that deceased was driving jeep as a relative for social purpose. There is no evidence produced on record to establish that jeep was being driven by deceased not as an employee of owner and so in absence of such contention, and evidence to that effect before claims tribunal, this Court cannot entertain such contention raised by appellant before this Court for first time as it is mainly based on facts. Presumption which has been made by appellant that deceased was employed as senior clerk in Narmada Project, therefore, he cannot be employed by owner of jeep, such presumption is not having any evidentiary value Appellant has not produced any evidence in support of such presumption before claims tribunal. A person can work with two employer at a time if he is not able to maintain himself and his family from income received by him from one employment. Mill worker while working in night shift in mill, in day time, driving auto rickshaw and maintaining family. This Court is having information that some of lawyers who are practicing as advocates, some of them are also doing other work while practicing as advocate just to maintain their family. So, merely because deceased was employed in Narmada Project as Senior Clerk, it cannot be presumed that he cannot be employed by owner of jeep unless there is any cogent evidence produced by appellant before claims tribunal. Section 147 of MV Act, 1988 suggests only engaged driver. It is not saying that such engaged driver must be paid driver. So, if owner has engaged driver, then, it is liability of insurance company on basis of terms and conditions of policy to indemnify owner for compensation which has to be paid as per award passed by claims tribunal, therefore, contention raised by learned advocate Mr. Nanavati that driver was not paid driver cannot be accepted because such concept is not there in statutory provisions incorporated by legislature in Section 147. In Section 147 of MV Act, word ''engaged'' has been used and driver Dashrathlal who was driving jeep was having valid license because it was not contended by appellant before claims tribunal that deceased was not having legal and valid driving license. Therefore, deceased who was having valid driving license was engaged by owner of jeep for driving jeep on date of accident and during that period, when jeep met with accident, then, his case is squarely covered as his risk is accepted by insurance company in IMT 19 as discussed by claims tribunal and rightly relied upon by claims tribunal, Palanpur, therefore, contention raised by learned advocate Mr. Nanavati cannot be accepted and it cannot be presumed in absence of any evidence that driver was not a paid driver. It was not case of claimant that deceased was taken by jeep as relative and it has been used for social purpose. So, in view of this back ground, contention raised by learned advocate Mr. Nanavati cannot be accepted. According to my opinion, in absence of evidence, it was proved that deceased was engaged by owner of jeep and there is no contrary evidence produced by appellant and, therefore, contention raised by learned advocate Mr. Nanavati cannot be accepted. Claims tribunal has rightly decided matter and has rightly passed award against present appellant insurance company and has rightly relied upon IMT 19 in this case after appreciating evidence on record that on date of accident deceased was engaged and driving jeep and he was engaged by owner, otherwise, it is very difficult for unknown person to drive vehicle without permission and, therefore, claims tribunal has rightly passed impugned award which does not call for any interference of this Court. Therefore, there is no substance in this appeal and same is required to be dismissed. [See :
In result, this appeal is dismissed.
6. Civil Application for stay is also disposed of as main appeal is dismissed by this Court today. Amount, if any, deposited by appellant insurance company in registry of this Court be transmitted to claims tribunal immediately.
