Bajaj Allianz General Insurance Company Ltd. vs Vijay Hanumant Gaikwad & Anr.

Respondent No.2 i.e. owner is duly served, absent. Hence proceed ex-parte against respondent No.2.

By consent of appellant /insurer and respondent No.1 / claimant appeal heard finally.

Learned counsel for the appellant submits that the only issue involved in this appeal is the modification of the Judgment and Award thereby a direction is required to be issued for recovery of the amount of compensation by the insurer from the owner of the offending vehicle.

Learned counsel for the appellant drew attention of the Court to the evidence on record which indicates that the insurer led evidence of Pranav Datye, RW-1 (Exhibit-47) who deposed about the driver of the truck Trailer bearing No. PH-05/Q-8665 was not holding valid and effective driving licence. He also proved the issuance of notice to the driver as well as owner of the vehicle seeking the production of the driving licence. It is his contention that in spite of the notice, driver of owner failed to produce driving licence. It is contented that by examining witness and by proving the said communication, burden of the insurer has been discharged. It is his contention that that onus has shifted upon the owner to prove otherwise. It is his submission that in identical facts, the coordinate bench in the case of Bajaj Allianz General Insurance Co. Ltd. Vs. Wahidbi and Anr. ^{11.2014 SCC OnLine Bom 795}, has held that in such circumstances the insurer is entitled for the order of pay and recover.

The absence of respondent No.2 indicates that respondent No.2-owner of the vehicle is not interested in opposing the appeal.

Perusal of the record indicates that in written statement specific plea was raised by the insurer with regard to there is no valid and effective driving licence held by the driver of the offending vehicle during the relevant time. After incorporating said defence in the pleading the insurer examined witness before the Tribunal in order to prove that a notice was issued to the owner as well as driver of the offending vehicle calling upon them to produce the driving licence. This Court therefore finds substance in the contention of learned counsel for the appellant that the insurer has discharged the initial burden upon it to prove that the driver of the offending vehicle was not having driving licence. The burden therefore shifted upon the owner to prove otherwise. Merely because the driver of the vehicle was not examined by Opponent No.2, the evidence led before the Court for issuance of notice to the driver and owner cannot be discarded. If the owner chooses not to lead evidence in rebuttal, he must suffer therefor. The judgment cited in the case of Bajaj Allianz General Insurance Co. Ltd. (supra), squarely applies to the present case. Consequently, the impugned Judgment and Award deserves modification.

The Judgment and Award stands modified in following terms:

The appeal is disposed of.