Hanuman and Another vs Bala and Another

Nirmaljit Kaur, J.—This is an appeal under Sec. 173 of the M.V. Act against the judgment and award dt. 6.7.2005 passed by the Motor Accident Claims Tribunal, Gulabpura, District Bhilwara vide which the appellant has been held liable for reimbursement of the award to the insurance company and the insurance company has been exonerated. On the basis of pleadings of the parties, five issues were framed by the Tribunal. One of the issues was issue no. 5 which reads as under:--

Thus, the issue No. 5 was with respect to driving licence. The said issue was decided against the appellant and in favour of the insurance company. It was decided on the ground that the appellant owner failed to place on record the driving licence.

While praying for setting aside, the learned counsel for the appellant raised twofold arguments. The first argument raised by the learned counsel for the appellant is that the onus to prove that the appellant did not have the driving licence was on the insurance company. The insurance company failed to discharge the said onus. Secondly, the appellant had duly submitted the particulars of the driving licence of driver-Babu Lal to Shri Pradeep Lakhotia -NAW-1, who is surveyor of the insurance company. The same is evident from Ex. D/6. The said documents proved that appellant No. 2 was having a valid driving licence.

The last argument raised by the learned counsel for the appellant is that at the time of mishap, the tractor was not in motion and therefore, requirement of the licence when the accident took place, does not arise. Reliance was placed on the judgment rendered by the Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Yogesh and Others, to submit that the appellant is under no obligation to furnish evidence to enable the insurance company to wriggle out its liability and that in absence of the insurance company proving the same, the liability was of the insurance company.

Learned counsel for the respondents however submitted that the appellant should have brought to the attention of the Court that part of the Ex. D/6 which shows that the appellant had handed over the relevant xerox copy of the documents of the driving licence to the surveyor.

Heard.

The only question that requires to be decided is as to whether the appellant had the valid driving licence or not and whether the insurance company was able to prove that the appellants did not have the valid driving licence.

It is evident from the arguments of the learned counsel for the respondents as well as Ex. D/6 that the appellant-owner had duly supplied the particulars of the driving licence belonging to the driver-Babu Lal. This is admitted by the Surveyor himself in his report. The same is reproduced as under:

CONCLUSION

(a) A Messy Tractor + Thresher (Wheat separator) was running in the Agriculture Land of Shri Bala S/o Shri Devi Gujjar. The said Tractor came on 07.04.2002 at 10.00 P.M. Shri Bala Gujjar was putting bundle of wheat into the Thresher Machine. Shri Manrup S/o Shri Heera Gujjar (26-years), Shri Madhu S/o Shri Hardeo Gujjar (40-years) and Shri Mangilal S/o Hardeo Gujjar (35-years) were giving bundle of wheat to Shri Bala Gujjar. Suddenly left hand of Shri Bala Gujjar came in running Thresher.

(b) 1 wrote a Registered A/D Letter No. PL/NIC/MACT/02-03/017 dt. 23.11.2002 to Tractor Owner for sending some important information regarding to this case. But till today he did not reply. Meanwhile he came on 13.12.2002 at my residence and gave me xerox copy of a Driving Licence, which is duly signed by him, but he said that he couldn''t reply without consent of his Advocate. His Telephone No. is 01428-254448.

(c) At the time of incident, Shri Bala S/o Shri Devi Gujar was separating his own wheat. Rent was -- 5kgs per bag wheat.

(d) Driving licence must be verified from LA, Jaipur through your Local Office.

(e) Insurance Cover Note also must be verified from Issuing Office (Branch Office, Kishangarh)

Once the particulars were given, it was incumbent upon the insurance company to verify the correctness of the same. Admittedly, it was not done. The Division Bench of this Court in the case of National Insurance Co. Ltd. vs. Yogesh & Ors. (supra) held that onus to prove that the driver did not have the driving licence was on the insurance company and in fact went on to hold that simply sending a notice to the driver to produce the licence, in itself, was not sufficient discharge of the onus put up on the insurance company. This Court in S.B. Civil Misc. Appeal No. 566/2006 (Mangu & Anr. us. Surya Prakash & Anr., decided on 3.10.2012 relying on the judgment of the Apex Court in the case of Rukmani and Others Vs. New India Assurance Co. and Others, and after referring the judgments of the Apex Court in which contrary view has been taken i.e. United India Insurance Co. Ltd. Vs. Gian Chand and others, followed the judgment rendered by the Apex Court in the case of Rukmani & Ors. (supra) as well as Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, and held that issuing of the notice and the failure of the driver to respond was not sufficient discharge by the insurance company of the burden to prove that the owner of the offending vehicle did not have a valid licence. Para 14 of the judgment rendered by the Apex Court in the case of Narcinva V. Kamat & Anr. vs. Alfredo Antonio Doe Martings, (supra) reads as under:--

The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, ah adverse inference be drawn against him that he did not have a valid licence to drive pickup van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A. which issues the driving licences keep a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegation. Applying the test who would fail, if no evidence is led, the obvious answer is the insurance company.

The facts of the present case are even better. In the present case, the details and particulars of the driving licence of Babu Lal had been supplied. In spite of the same, the insurance company did not bother to verify. Thus, the Tribunal fell in error while exonerating the insurance company on the ground that the appellant had not produced the driving licence of driver-- Babu Lal.

As a result, the appeal is allowed and the findings on issue no. 5 are set aside. The insurance company is held equally liable, It is submitted by the learned counsel for the appellant that the appellant had deposited Rs. 75,000/- before the Tribunal in compliance of the interim direction of this Court. The appellant is entitled for the refund of the amount along with interest.