National Insurance Co. Ltd. vs Prabha Devi and Others

Arun Kumar Goel, J.—When this case was taken up today, learned counsel for the parties submitted that looking to the limited controversy involved in this appeal, it may be finally disposed of after its admission at the threshold. It was further submitted that its pendency will not be in the interest of either of the parties. Keeping in view this joint request made by the learned counsel for the parties and also looking to the limited controversy involved in this case, it has been taken up for final hearing after it was formally admitted.

Mr. Ashwani Sharma, the learned counsel for the appellant urged only one ground in support of this appeal. It was, that the deceased Bhag Chand, husband of respondent No. 1, father of respondent Nos. 2 to 4 and son of respondent No. 6, was travelling as unauthorised gratuitous passenger in a goods vehicle, meant and adapted for carriage of goods only, at the time of its accident. As such, looking to the defences open to his client u/s 149 (2) of the Motor Vehicles Act, 1988, learned Tribunal below fell into error by holding the appellant liable for payment of compensation awarded in this case. With a view to buttress his this submission, Mr. Sharma referred to the evidence examined by the parties during the course of trial, before the learned Tribunal below.

Before proceeding further in this case, it may be appropriate to observe that learned Tribunal based on the pleadings of the parties framed the following issues:

(1) Whether Bhag Chand has died on account of rash and negligent driving by respondent No. 2? OPP

(2) Whether the petitioners are entitled to compensation, if so, how much and from whom? OPP

(3) Whether the respondent No. 2 was not having a valid and effective driving licence, if so, its effect? OPR-1

(4) Whether the deceased was not accompanying with his goods and was not covered under the terms and conditions of the policy? OPR-1

(5) Relief.

For the purpose of deciding this appeal, issue No. 4 is relevant and material. Admittedly, onus of this issue was on the appellant. Learned counsel for appellant by referring to the record of the learned Tribunal below fairly stated that no evidence has been produced by his client.

He, however, made an attempt to show that there is no legally acceptable evidence to suggest that the deceased was travelling as owner of his goods at the time of accident in the truck bearing No. HP 14-0297.

In this behalf when a reference is made to the statement of respondent No. 1 Prabha Devi, its perusal shows that on the fateful day, i.e., 1.7.2003, her husband was on way from Parwanoo in Swaraj Mazda vehicle. He was travelling in the vehicle with his goods when the accident took place and he died at the spot. When a reference is made to her cross-examination, I am satisfied that she has not been dislodged on this vital aspect of the case.

I may, however, hasten to add here that the question of respondent Nos. 1 to 5 having led evidence on this issue No. 4 was to only arise when by leading cogent, reliable as well as legally acceptable evidence, the appellant had discharged the onus. This is looking to the frame of issue as well as Section 101 of Evidence Act or at least applying the principles underlying this section, in case technicality of the Evidence Act is not applicable to the proceedings under Motor Vehicles Act, 1988, before the Tribunal below.

It is by now well settled by catena of decisions of the Hon''ble Supreme Court that all defences are to be proved by the insurer like the appellant in the present case. Reference can be made in this behalf to Narcinva v. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC); Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC) and National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

When submission of Mr. Sharma is tested on the basis or evidence on record, as well as on the touchstone of these decisions of the Supreme Court, it is evident that this is a case of no evidence having been examined by the appellant what to talk of legally acceptable evidence, to raise the plea urged in this appeal.

No other point was urged at the time of hearing.

Accordingly, it is evident that there is no merit in this appeal, which is accordingly dismissed with no order as to costs. Interim order dated 22.7.2004 is vacated and C.M.P. No. 596 of 2004 also stands disposed of.