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Judgment
V.K. Agrawal, J.
This misc. appeal u/s 173 of Motor Vehicles Act, 1988 (hereinafter referred to as ''the Act'') is directed against the award dated 26.4.2000 in Motor Vehicle Case No. 914 of 1999 by the Additional Motor Accidents Claims Tribunal, Katni, awarding Rs. 25,000 as compensation u/s 166 of the Act in favour of claimant-respondent No. 1.
Indisputably, on 6.5.1995 claimant-respondent No. 1 was travelling by Tempo No. MP 20-B 1737. The said Tempo was dashed against from behind by Matador bearing the registration No. MP 21-6816, resulting in injury to claimant-respondent No. 1 Simiya Bai.
The claimant-respondent No. 1 filed application u/s 166 of the Act, alleging that the accident had occurred on account of rash and negligent driving of offending Matador by its driver, appellant No. 1. It was alleged that the said Matador was owned by appellant No. 2 and was insured by respondent No. 2. The claimant-respondent No. 1 averred that she suffered permanent disability due to injuries suffered by her in the accident. Compensation of Rs. 2,45,000 was claimed.
The claim petition was resisted by the owner, appellant No. 2, as well as respondent No. 2, insurer. The appellant No. 2 denied that there was any accident. It was also denied by him that the claimant-respondent No. 1 had suffered permanent disability. The insurer, respondent No. 2, in his reply to the petition denied that the appellant No. 1 was driving the vehicle. It was alleged that the said vehicle was being driven by one Nathusingh Gond. It was also alleged that Nathusingh Gond as also the appellant No. 1 were not having valid driving licence. It was therefore prayed that the claim petition of the claimant-respondent No. 1 be dismissed.
Learned Tribunal in the impugned award held that the accident was caused by rash and negligent driving of the offending vehicle, Matador by the appellant No. 1, due to which the claimant-respondent No. 1 suffered permanent disability. It was further held that the claimant-respondent No. 1 suffered permanent disability. The learned Tribunal also held that the appellant No. 1 was not having a valid driving licence and, therefore, the offending vehicle was driven by him in breach of terms of policy. Accordingly, though compensation of Rs. 25,000 was awarded in favour of claimant-respondent No. 1 as against the appellants, the driver and owner of the offending vehicle, however, the insurer, respondent No. 2 was exonerated.
Learned counsel for appellants submitted that it has not been established that the claimant-respondent No. 1 suffered permanent disability in the accident. It was submitted that compensation as awarded was excessive. It was also contended that respondent No. 2, insurer, did not prove its defence that the driver of offending vehicle did not possess proper driving licence, hence respondent No. 2, insurer, should also have been held liable to pay the amount of compensation.
The learned Counsel for respondent No. 2, insurer, however, supported the impugned award and submitted that the insurer was not liable to pay compensation because the owner, appellant No. 2 did not discharge the burden of proving that the vehicle was handed over by him to a person holding valid driving licence. It was submitted that the owner, appellant No. 2 did not take steps for production of licence of his driver and has not even entered the witness-box to state that the offending vehicle was handed over by him for being driven by a duly licensed driver. It was submitted by the learned Counsel for insurer, respondent No. 2, that it was rightly exonerated by the Tribunal from the liability to pay compensation.
The first contention of learned Counsel for appellants that claimant-respondent No. 1 has failed to prove that she suffered from permanent disability on account of injury sustained by her in the said accident, is obviously without merit. It may be noticed in the above context that claimant-respondent No. 1 examined herself and has specifically stated that she sustained injury on her face, resulting in permanent disfiguration. The above statement is corroborated by the statement of Vijay Kumar, AW 2. The claimant-respondent No. 1 has also examined Dr. S.K. Sharma, AW 3, who has issued certificate, Exh. P-3, stating that there was permanent disfiguration and consequently permanent disability.
It may be noted that as provided u/s 142(c) of the Act, permanent disfiguration of head or face amounts to permanent disability. Therefore, there is no scope for doubt that claimant-respondent No. 1 sustained injury in motor accident, resulting in disfiguration, and thus she suffered permanent disability.
The next contention of the learned Counsel for appellants is that, it was the obligation of the respondent No. 2, insurer, to raise specific plea in its defence that the driver of offending vehicle was not having a valid driving licence and further that it should have proved the said defence, by adducing satisfactory evidence.
In the above context learned Counsel for the respondent No. 2, insurer, has submitted that, though the appellant No. 2, owner, resisted the claim petition in the Tribunal, but has failed to produce the licence of his driver and has failed to prove that appellant No. 1, driver of the offending vehicle, was having a valid driving licence. Therefore, the liability could not be fastened on respondent No. 2, insurer.
It may be noticed in the above context that the respondent No. 2, insurer, in its reply firstly averred that the offending vehicle Matador was not being driven by appellant No. 1 Ram Lakhan, and that the said Matador was being driven by one Nathusingh Gond. It was also averred that Nathusingh Gond or appellant No. 1 Ram Lakhan were not having valid driving licence. The defence of respondent No. 2, firstly, was that the driver of offending vehicle, namely, Nathusingh Gond was not impleaded in the claim petition and secondly, neither Nathusingh Gond nor the appellant No. 1, who was alleged to be the driver of offending vehicle, possessed valid driving licence. Hence there was breach of terms of policy and, therefore, respondent No. 2 was rightly exonerated from the liability. The learned Counsel for respondent No. 2 relied upon United India Insurance Co. Ltd. Vs. Gian Chand and others, (SC), to support his contention.
It is to be noticed that the defence raised by insurer, respondent No. 2, that the driver of offending vehicle was not having a valid driving licence, ought to have been established by leading satisfactory evidence by the insurer. Reference in the above connection may be made to Suresh Mohan Chopra Vs. Lakhi Prabhu Dayal and others, (SC).
In the instant case, it appears that respondent No. 2 insurer examined one Ashok Kotwani, Senior Assistant, NAW 1, in support of its defence. He has stated that the offending vehicle Matador was being driven by Ram Lakhan, however, he did not have a proper driving licence. The above statement of Ashok Kotwani, NAW 1 appears to be based on a report Exh. D-2, issued by R.T.O., Banda and certificate Exh. D-3. He has stated that the driver of offending vehicle had only a licence to drive light motor vehicle. It may be noticed that certificate as above issued by R.T.O., Banda, would be of no avail. The said certificate was not admissible in evidence and could not be acted upon. Reference in the above connection may be made to National Insurance Co. Ltd. Vs. Ajay Deshmukh and Others, (MP).
It is therefore clear that from the evidence led by the respondent No. 2 it is abundantly clear that the vehicle was being driven by Ram Lakhan. Therefore, the plea of the respondent No. 2, insurer, that the vehicle was not driven by Ram Lakhan but by Nathusingh Gond stands negatived by the evidence led by respondent No. 2 itself. Further, the respondent No. 2, insurer, did not lead satisfactory evidence to establish that the appellant No. 1 driver of offending vehicle was not having a valid driving licence.
The contention raised by learned Counsel for respondent No. 2, insurer, that it was the obligation and burden of appellant No. 2, owner, to prove that the driver of offending vehicle was having a valid driving licence, cannot be accepted. It may be noticed that in the case of United India Insurance Co. Ltd. Vs. Gian Chand and others, (SC), relied upon by the learned Counsel for the respondent No. 2, it has been observed that the insurance company would get exonerated from its liability when the owner had handed over the vehicle for being driven by a licensed driver. The burden to prove its defence that the offending vehicle was being driven by an unlicensed driver, was on the respondent No. 2, insurer. However, it has failed to discharge the said burden and it was not duly proved by it by adducing satisfactory evidence that the offending vehicle was being driven by an unlicensed driver. The contention of learned Counsel for respondent No. 2, therefore cannot be accepted.
In view of the above, it is clear that respondent No. 2 having failed to prove the breach of terms of policy, could not have been exonerated from liability to pay compensation.
Accordingly, the appeal is allowed. The impugned award of Rs. 25,000 is maintained. However, it is directed that the amount of award shall be payable jointly and severally by the appellants and respondent No. 2, insurer. The other terms of the award shall remain unaffected.