New India Assurance Company Ltd. vs Neelam Goyal and Anr.

New India Assurance Company Limited is in appeal against judgment dated 2932000 of Motor Accidents Claims Tribunal, Jammu, in four

appeals, preferred against award delivered in Claim Petitions, File Nos.586, 587, 588 and 589.

Shri R.K. Gupta, learned counsel for the Insurance Company has questioned the award of Motor Accidents Claims Tribunal, Jammu, only in so

far as it decides Issues No.4 and 5 against the Insurance Company.

Shri Gupta relies on National Insurance Co. Ltd., New Delhi v. Jugal Kishore and others, reported as AIR 1988 SC 719 and National

Insurance Company Ltd. v. V. Velammal and others, reported as AIR 2000 Madras 476, to urge that the Tribunal has erred in rejecting the

evidence produced by the Insurance Company to prove that S. Nihal Singh S/o S. Sardara Singh, the driver of the vehicle, who happens to be the

owner too of the vehicle, was not holding a valid driving licence at the time of accident. He submits that onus of proof of an Issue becomes

irrelevant after the parties are put to proof and disproof of the Issue. Learned counsel submits that facts within the exclusive knowledge of a party,

if not placed on records, would raise a presumption that if the facts had been placed on records, this would prove to the detriment of the party,

who withholds such facts from the scrutiny of the Court. While elaborating his submissions, learned counsel submits that a specific plea was raised

by the Insurance Company during the currency of the trial of the Claim Petitions that the driver of the vehicle, did not hold a valid driving licence,

which plea of the Insurance Company was reflected by the Tribunal in one of the issues framed by it on 2481994.

The fact as to whether or not the driver of the vehicle was holding a valid driving licence, was very much within the knowledge of the driver as

also of the owner. Both the driver as also the owner was, thus, required to either produce a valid driving licence before the Tribunal to disprove the

plea raised by the Insurance Company or produce such evidence which could prove that the driver of the vehicle was holding a valid driving

licence at the time of the accident. Learned counsel submits that Tribunal has erred in appreciating evidence in accordance with law propounded

by Hon'ble Supreme Court of India.

Shri R.K. Bhatia, learned counsel representing S/Shri Jasvir Singh and Avtar Singh, legal representatives of the deceased respondent Nihal

Singh, driver and owner of vehicle No.PUU4111, has, in reply, submitted that the Insurance Company has failed to produce requisite evidence to

demonstrate that the driver of the vehicle, did not hold a valid driving licence at the time of the accident. He submits that reliance of the Insurance

Company on the photostat copy of the driving licence and collection of proof in regard thereto, regarding its being fake, and not issued by the

competent Licensing Authority, in this behalf, cannot be taken into consideration in the absence of any proof of retention of the envelope, which is

alleged to have been sent by the driver of the vehicle to the Insurance Company, for verification. Learned counsel further submits that apart from

the records of the Licensing Authority, which have been produced by the Insurance Company in the present case, there were two other Licensing

Authorities in the region, whose records have not been produced by the Insurance Company and in that view of the matter, in the absence of

records of such Licensing Authorities, it cannot be said that the Insurance Company had successfully proved the licence to be fake.

I have considered the submissions of learned counsel for the parties. I have gone through the statements of the witnesses produced by the

Insurance Company as also the discussion of learned Presiding Officer of the Motor Accidents Claims Tribunal, Jammu, on the issue.

Before dealing with the question raised by Shri Gupta, it would be advantageous to refer to Section 169 of the Motor Vehicles Act 1988 and

Rule 324 of the Jammu and Kashmir Motor Vehicle Rules, 1991.

Section 169.""Procedure and powers of Claims Tribunals.(1) In Holding any inquiry under Sec. 168, the Claims Tribunal may, subject to any rules

that may be made in this behalf, follow such summary procedure as it thinks fit.

(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of

witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed;

and the Claims Tribunals shall be deemed to be a Civil Court for all the purposes of Sec. 195 and Chapter XXVI of the Code of Criminal

Procedure, 1973 (2 of 1974).

(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for

compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.

Rule 324 ""Power vested in civil court which may be exercised by Claims Tribunal:(1) Without prejudice to the provisions of Section 169:

(a) every Claims Tribunal may exercise all or any of the powers vested in a civil court under the following provisions of the J&K Code of Civil

Procedure, Svt. 1977 (Act of 1977) in so far as they may be applicable, namely:

Sections 30, 32, 34, 35, 35 (a) and (c), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152 'and 153:

(b) subject to the provisions of Section 174:

(i) if any Claims Tribunal constituted for any Division where the amount of compensation awarded by it does not exceed twentyfive thousand

rupees shall have all the powers of Civil Court, and where such amount exceeds the said sum shall have all the powers of the High court, for the

purpose of execution of the award if the award is a decree for the payment of money made in suit by City Civil Court or the High Court, as the

case may be;

(ii) for the purpose, other than those specified in subrule (1), the Claims Tribunal may exercise all or any of the powers of a Civil Court as may be,

necessary in any case for discharging its functions under the Act and the rules made thereunder.

Reading of Section and Rule (supra), makes it explicitly clear that Motor Accidents Claims Tribunal, has all the powers of a Civil Court for the

purpose of taking evidence on oath and purposes akin thereto.

As a corollary, the Tribunal is required to appreciate evidence, in the same fashion, as a Civil Court does. It, in other words, means that the

decision of an Issue before a Tribunal, would, inter alia, be on the basis of preponderance of probabilities.

Onus of proof in civil cases may, thus, lose importance when the parties are put to proof or disproof of an Issue in question. Evidence led by a

party, on whom the initial onus of proof lies, would, thus, govern the shifting of onus of proof on to the opposite party if on the basis of

preponderance of probabilities, it may be held that the party on whom the initial onus of proof was placed, had successfully discharged its onus of

proof.

It would be advantageous, at this stage, to refer to what has been held by Hon'ble Supreme Court of India in National Insurance Co. Ltd.,

New Delhi v. Jugal Kishore, reported as AIR 1988 SC 719.

Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted

even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of

significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has

consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to

produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is

greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of

the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that all such

cases where the Insurance Company concerned wishes to take a defence in claim petition that its liability is not in excess of the statutory liability it

should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of

approaching this Court in Civil Appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short

avoidable litigation but also helps the Court in doing justice between the parties. The obligation on the pat of the State or its instrumentalities to act

fairly can never be overemphasised.

The issue in question, i.e., Issue No.4 was, thus, required to be considered by the Tribunal, on the lines indicated hereinabove. I will now

proceed to consider as to whether or not the Issue has been dealt with according to law by the learned Presiding Officer of Motor Accidents

Claims Tribunal, Jammu.

The AppellantInsurance Company produced Lt. Col. Charanjit, who had been appointed by it to investigate the matter, particularly as to the

genuineness of licence alleged to have been possessed by S. Nihal Singh. This witness has testified regarding his investigation in the matter and

coming to the conclusion that licence, said to have been possessed and issued in favour of Nihal Singh, was fake. The witness had addressed a

communication to Nihal Singh to produce his driving licence for the purpose of verification, in answer whereto, Nihal Singh sent a photocopy of the

licence, which on verification from the concerned Licensing Authority, which was alleged to have issued the licence, was found to be fake. Ajay

Kumar Dogra, Surveyor, another witness of the Insurance Company, had approached the concerned Licensing Authority to verify authenticity of

the licence. The Licensing Authority certified that no such licence, as is alleged to have been issued to Nihal Singh, had been so issued by the

Licensing Authority. Certificates issued by the Licensing Authorities have been proved by this witness. Appellant did not rest here. It produced yet

another witness, namely, Vipan Kumar, General Clerk, SDM, Hamirpur, as its witness. This witness states that SDM, Hamirpur, is the Licensing

Authority under Motor Vehicles Act. He says that he has been posted as General Clerk with the Licensing Authority, Hamirpur. Register regarding

issuance of Driving Licences was brought by him before the Tribunal arid according to the Register, the licence of S. Nihal Singh, bearing Driving

Licence No.6854/H was not found to have been so issued in the name of S. Nihal Singh. He further says that no licence in name of S. Nihal Singh

has been issued on 811985 too. He further testifies that Ajay Kumar, witness, had submitted an application to the Licensing Authority on 22nd

January, 1996 and sought verification regarding the issuance of Licence No.6854/H. Certificate issued in this behalf by the Licensing Authority,

certifying that no such licence has been issued by it, has been admitted by him to be correct. This witness has further testified that Licence

No.6854/H is recorded to have been renewed and issued in the name of one Kuldeep Singh S/o Beli Ram on 27th November, 1984. The only

thing, which could be elicited from the crossexamination of this witness, is that apart from Licensing Authority, Hamirpur, there are two other

Licensing Authorities in Hamirpur Division, which are functioning as Registering and Licensing Authority, Bursar, and Registering and Licensing

Authority, Nadaun.

I have considered the evidence of this witness and I am of the opinion that the Insurance Company has successfully discharged its initial onus of

proof on the basis of preponderance of probabilities. It was now open to the driver or owner of the vehicle to disprove the facts brought on

records by the Insurance Company.

The driver/owner of the vehicle has, however, opted to maintain silence in the matter. Neither any evidence was produced nor had the owner

or driver of the vehicle, appeared in the witness box to rebut the evidence led by the Insurance Company or even assert on oath that the driver of

the vehicle, did hold a valid driving licence at the time when the vehicle met with an accident.

Facts, which were exclusively in the knowledge of the owner and driver of the vehicle, were not, thus, placed on records to rebut the case set

up by the Insurance Company that the driver of the vehicle did not hold a valid driving licence. Much is sought to be made by the owner from the

statement of Shri Vipan Kumar, General Clerk, Licensing Authority, Hamirpur, when the witness informed the Tribunal that there are three

Licensing Authorities in the Hamirpur Division. Existence of other two Licensing Authorities in Hamirpur Division does not, in any way, weaken the

case set up by the Insurance Company because these Licensing Authorities, according to the statement of the witness, have specifically been

named as Licensing Authority Bursar, and Licensing Authority, Nadaun. These Authorities carry different nomenclature than the nomenclature of

the main Licensing Authority, i.e., Licensing Authority, Hamirpur. No benefit, thus, could be derived by the owner because of there being three

Licensing Authorities in Hamirpur Division.

Plea of Shri Bhatia that in the absence of records of other two Licensing Authorities, it cannot be held that the Insurance Company had

discharged the onus of proof of Issue which lay heavily on it, is without merit. A party supposed to be possessed of a document and in the present

case, an important document like driving license, on the basis whereof, a driver gets right to drive a vehicle, having not been produced before the

Tribunal for its examination, deprives the owner/driver of the vehicle to urge that the driver did hold a valid driving licence at the time of the

accident. Shri Bhatia submitted that provisions of the Evidence Act, do not apply to proceedings under Motor Accidents Claims Tribunal and in

that view of the matter, onus of proof, cannot be shifted on to the driver.

I am not impressed with this submission of Shri Bhatia. Even if one were to hold that Evidence Act is not, as such, applicable to the

proceedings before Motor Accidents Claims Tribunal, yet it cannot be conceived that principles underlying various provisions of the Evidence Act,

which are based on CASUS CONSCIENTIAE and fair play, cannot be ignored in proceedings before a Motor Accidents Claims Tribunal.

Section 169 of the Motor Vehicles Act, 1988 and Rule 324 of the J&K Motor Vehicle Rules, 1991, provide the status of a Civil Court to the

Motor Accidents Claims Tribunal. The Act and the Rule (supra) supply powers of a Civil Court to the Tribunal in adjudicating claims under the

Act. Adjudication, in terms of Section 168 of the Act, would require decision on rival contentions of the parties. Adjudication may, thus, depend

on affidavit, documentary or oral evidence. In such cases, therefore, principles underlying various provisions of the Evidence Act, cannot be given

a gobye, though strict application of the Evidence Act may not be desirable. In nutshell, adjudication of a cause has to be on the preponderance of

probabilities on the basis of material or evidence, be that evidence on affidavit, documentary or oral evidence produced or adduced by the parties

in a cause before a Claims Tribunal. A party to a litigation, who is under law entitled to the possession of a document cannot, thus, be permitted to

avoid placing such documents before the Tribunal, so as to resolve an Issue pending before it, particularly when the existence, authenticity or

validity of such document is in question. Silence on the part of such party in the matter, coupled with his omission to produce such documents,

cannot be countenanced except on justifiable grounds supporting such nonproduction. Nonproduction of evidence or documents by such party

would entail adverse inference against such party.

Motor Accidents Claims Tribunal, Jammu, has, thus, erred in deciding Issue No.4 against the AppellantInsurance Company.

Finding on this issue is, therefore, reversed. Consequently, finding on Issue No.5 is modified. The amount awarded by the Tribunal is held

recoverable from the legal representatives [Jasvir Singh and Avtar Singh, both sons of Late Nihal Singh, R/o V.P.O. Dala, District Moga (Punjab)]

of the driver and owner of motor vehicle, i.e., deceased respondent Nihal Singh.

I am conscious of the fact that Chapter XII of the Motor Vehicles Act, indicates welfare legislation, intended for speedy adjudication of

disputes and realization of compensation, arising out of the use of the motor vehicles, by the claimants. Recovery of amount of compensation by the

claimants from the owner and driver of the vehicle, is likely to take some time. The case is already delayed and claimants deprived of their due

compensation. In these circumstances, any delay in payment of amount of compensation to the claimants, would aggravate their agony.

In these circumstances, I deem it proper and just to direct that the AppellantInsurance Company shall deposit awarded amount along with

interest @ 12% accrued thereon till date, in this Court in the appeals, within a period of one week, which, when so deposited, shall be released in

favour of the claimants by Registrar Judicial of this Court, on proper identification. At the same time, I consider it appropriate to direct that the

amount paid by the AppellantInsurance Company to the claimants in terms of this order, shall be recoverable by the AppellantInsurance Company

from the legal representatives of deceased respondent Nihal Singh and the properties, both moveable and immoveable, left by deceased Nihal

Singh, alongwith interest @ 12% per annum on the amount, which has been ordered to be released in favour of the claimants till the amount is

recovered by the AppellantInsurance Company from the legal representatives of deceased Nihal Singh. The Tribunal, as and when approached by

the Insurance Company in this behalf, shall expedite the recovery of amount, which has been ordered to be paid to the Claimants, from the legal

representatives and properties left by deceased S. Nihal Singh.

Finding of Motor Accidents Claims Tribunal, Jammu, on Issue No.5 is accordingly modified.

This appeal is allowed in the terms indicated hereinabove.

A copy of this judgment shall be placed on the connected files, being CIMA No.76/2000, CIMA No.77/2000 and CIMA No.78/2000,

which shall stand disposed of along with connected CMPs in all these CIMAs, in terms of this judgment.