Duraiswami Naidu vs Kanthammal and others

Ar. Lakshmanan, J.—Though respondents 1 and 5 to 7 were served on 25-11-1993, respondents 2 to 4 on 26-11-1993 and the 8th

respondent/insurance company on 15-11-1993, there is no representation on behalf of either of the respondents. The respondents are also called

absent. Heard the learned counsel for the appellant.

This Letters Patent Appeal is directed against the judgment of a learned single Judge of this Court in A. A.O. No. 613 of 1985 dated 5-12-

1990. .

The appellant is the owner of the vehicle. Respondents 1 to 7, who are the legal representatives of deceased Balaraman, are the claimants. The

8th respondent is the insurance company. The claimants filed M.C.O.P. No. 272 of 1981 on the file of the Motor Accident Claims

Tribunal/Principal Subordinate Judge, Vellore, claiming a compensation of Rs. 60,000/- for the death of Balaraman. According to them, the

deceased was aged about 40 years at the time of his death and was earning a sum of Rs. 600/- per month by working as a Cobbler. The owner of

the vehicle/appellant herein filed a counter opposing the claim. According to him, the tractor in question was not driven in a rash and negligent

manner, that the driver of the vehicle was not even prosecuted as the case was one of negligence on the part of the deceased and that the same

was referred as mistake of fact. It is the specific case of the owner of the vehicle that the deceased alone was responsible for his death and not

either the driver or the vehicle. The insurance company/8th respondent filed a counter adopting the counter filed by the owner of the vehicle. The

insurance company has, however, taken a stand that the driver who drove the vehicle had no valid licence on the date of the accident and

therefore, the claim petition is liable to be dismissed.

Before the Tribunal, the 1st claimant and one Shanmugam were examined as P.Ws. 1 and 2 and the owner of the vehicle examined himself as

R.W. 1. Exs. A-1 and B-1 to B-3 were marked on the respective sides. The Tribunal held that the deceased died due to the hitting and running

over by the tyres of the trailer. The Tribunal has also held that the deceased in the course of this attempt to pluck the sugarcane loaded in the trailer

has fallen down and met his death by the trailer tyre running over him. Therefore the Tribunal held that the deceased did not die due to the rash and

negligent driving of the driver of the vehicle. However, the Tribunal has directed the owner of the vehicle/appellant to pay a sum of Rs. 15,000/- by

way of compensation. The Tribunal has not directed the insurance company to pay the compensation amount. The Tribunal has further directed

that if the amount is not deposited within two months from the date of the award, the claimants are entitled to 12% interest on the award amount.

Aggrieved by the award of the Tribunal, the owner of the vehicle filed A.A.O. No. 613 of 1985 in this Court questioning the correctness of the

award while the claimants have filed A.A.O. No. 62 of 1986 for enhancement. It was urged before the learned single Judge that the insurance

company has not discharged its liability by adducing necessary evidence to prove that the driver of the vehicle was not holding a valid licence on

the date of the accident and that a mere pleading to that effect in the counter will not amount to proof. It was further urged that the Tribunal has

erred in fixing the burden of proof on the owner of the vehicle to prove that the driver had a valid licence when there is not even a charge in the

criminal proceedings. Therefore, the award of the Tribunal in respect of its finding on the liability of the owner was challenged before the learned

single Judge as erroneous.

The learned single Judge by his judgment dated 5-12-1990 accepted the finding of the Tribunal that the deceased did not die due to the rash

and negligent driving of the tranctor-trailor by its driver but he died due to the hitting and running of the tyre of the trailor in the course of his trying

to pluck sugarcane loaded in the trailor. Even so, the learned Judge held that the compensation in a sum of Rs. 15,000/- should be awarded to the

claimants, payable by the appellant/owner of the vehicle. In the other appeal viz., A.A.O. No. 62 of 1986 filed by the claimants for enhanced

compensation, a suggestion was made by the learned Judge to the insurance company that it may consider paying the claimants compensation in a

sum of Rs. 15,000/- ex gratia. The said suggestion was accepted by the insuracne company and it issued a cheque for Rs. 15000/-, which was

handed over to the 1st claimant/1st respondent herein, on her behalf and on behalf of the other claimants, which was directed to be invested in any

nationalised or scheduled bank. Regarding the quantum of Compensation awarded to the claimants, the learned Judge held that the driver of the

vehicle was rash and negligent, which was responsible for the accident, and therefore, the owner of the vehicle and the insurance company would

both be liable to pay to the claimants compensation in a sum of Rs. 30,000/- and since the insurance company has already paid a sum of Rs.

15,000/- by way of their contribution, the learned Judge observed that no further liability need be fastened on the insurance company. With

reference to the liability of the owner of the vehicle, the learned Judge directed the owner of the vehicle/appellant herein to pay one half of Rs.

30,000/-. Consequently, the learned single Judge dismissed A.A.O. No. 613 of 1985 filed by the owner of the vehicle with costs of the

claimants/respondents 1 to 7, and dismissed A.A.O. No. 62 of 1986 filed by the claimants in view of the payment of Rs. 15,000/- by the

insurance company, however, without costs. The finding of the learned single Judge that the owner of the vehicle is liable to pay a sum of Rs.

15,000/- as compensation by way of his contribution is now challenged in this letters patent appeal.

The only point which arises for consideration in this appeal is,

Whether the order of the learned single Judge in directing the owner of the vehicle/ appellant herein to pay a compensation of Rs. 15,000/- by way

of his contribution to the claimants is proper and justified?

Point:-- As already seen, the Tribunal has held that the deceased did not die due to the rash and negligent driving of the vehicle but he died due

to the hitting and running over of the tyres of the trailer. However, the learned single Judge held that the rash and negligent driving of the vehicle by

its driver was responsible for the accident. According to the learned counsel for the appellant/ owner of the vehicle, the learned single Judge having

found that the rash and negligent driving of the vehicle by its driver was responsible for the accident and having further found that the owner of the

vehicle and the insurance company would both be liable to pay to the claimants compensation in a sum of Rs. 30,000/-, ought not to have

restricted the liability/contribution of the insurance company to Rs. 15,000/- only. As rightly pointed out by the learned counsel for the appellant,

the learned single Judge should have seen that there can be no limit on the liability of the insurance company to Rs. 15,000/- only either in law or

on the facts of the case. In our opinion, the learned Judge ought to have directed the insurance company to indemnify the appellant for the entire

award and not partly only, which is not correct in law. The insurance company ought to have been held liable to indemnify the owner of the

vehicle/appellant for the entire sum of Rs. 30,000/- and not for a part of it.

We are also in agreement with the argument advanced by the learned counsel for the appellant that it is not the burden of proof of the owner of

the vehicle to prove that the driver had a valid licence and that the insurance company ought to discharge its liabilify by adducing necessary

evidence to prove that the driver was not holding a valid licence on the date of the accident. Mere pleading to that effect in the counter affidavit, in

our opinion, will not amount to proof. In support of his contention, the learned counsel for the appellant cited the decisions reported in Narcinva V.

Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, and Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and

Others, , the Supreme Court held that the burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders

of the insurance company and that the owner of the vehicle was under no obligation to furnish evidence so as to enable the insurance company to

wriggle out of its liability under the contract of insurance. In the instant case, the insurance company has not taken any steps to produce the driving

licence of the driver, which is issued by the concerned Regional Transport Officer in order to substantiate its contention that the driver of the

vehicle was not holding a valid licence on the date of the accident. The insurance company having failed to do so, cannot now wriggle out of its

obligation and plead otherwise. As observed by the Supreme Court, when once the insurance company failed to prove that aspect, its liability

under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the policy of insurance. The judgments

reported in Oriental Insurance Company Limited Vs. Indirani and Others, and National Insurance Co. Ltd. Madras Vs. A. Babu and others, , are

also for the same proposition. Since the matter is directly covered by the decision of the Supreme Court in Narcinva V. Kamat and Another Vs.

Alfredo Antonio Doe Martins and Others, , there is no need to refer to the other two decisions cited by the learned counsel for the appellant.

Therefore, we hold that the insurance company has failed to discharge its burden of proving that the driver of the vehicle was not holding valid

driving licence on the date of the accident.

For the reasons aforesaid, we allow the letters patent appeal filed by the owner of the vehicle and modify the order of the learned single Judge

in so far as it relates to the apportionment of the liability of the appellant in a sum of Rs. 15,000/- is concerned. We hold that the insurance

company is liable to pay the entire compensation amount of Rs. 30,000/- to the claimants together with interest at 12% per annum from the date of

the petition till the date of payment. No costs.

It is now represented that the owner of the vehicle/appellant has deposited a sum of Rs. 7,500/- on 31-10-1985 to the credit of the

proceedings in the trial Court, pending disposal of A.A.O. No. 613 of 1985. In view of the above modified orders of ours, the appellant/owner of

the vehicle is entitled to withdraw the said sum if it had not already been withdrawn by the claimants. If it had been already withdrawn by the

claimants, the insurance company shall reimburse the appellant to the extent of Rs. 7,500/- and pay the balance of Rs. 7,500/- to the claimants.

Appeal allowed.