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Judgment
K.B.K. Vasuki, J.—This appeal is filed by the second Respondent/Insurance Company of the car bearing Registration No. TN 31 Z 2277
belonging to the first Respondent in the claim petition. It is not in dispute that at 8.15.p.m. on 09.04.2001 one road traffic accident occurred near
Boopathy Petrol Bunk at Melur-Madurai Main Road, due to rash and negligent driving of the car driver. In the course of which, the car hit against
one parked vehicle and tamarind tree and one Senthil Kumar who was standing on the southern side of the road and the accident victim sustained
injuries and later succumbed to such injuries.
The tribunal after analysing various aspects, assessed the loss sustained by the claimants and awarded compensation of Rs. 2,20,000/- payable
with interest at 7.5% p.a. from the date of claim petition and fastened the liability to pay the same upon the second Respondent/insurance
company. The Insurance company has come forward with this appeal questioning its liability on the ground of no possession of valid driving license
by the driver of the vehicle and also by disputing the correctness of the quantum of compensation by objecting to the one third deduction in the
monthly income towards personal expenses of the deceased.
Regarding the first ground the learned Counsel is by relying upon the 3 Judgment of Apex Court reported in 2009 2 CTC 452 in Bhuvan Singh
.v. Oriental Insurance Company Limited advanced the argument that the possession or non-possession of valid driving license by the driver of the
vehicle is within the knowledge of the driver and the burden is cast upon the driver to prove the possession of valid driving license as such no
burden can be cast upon the insurance company to prove that the driver was not holding valid driving license at the time of accident in breach of
policy conditions. It is further argued by the learned Counsel for the Appellant even otherwise the Insurance Company has taken all the possible
steps by summoning both the driver and owner of the vehicle and has also held independent investigation in this regard through private investigator
and has examined the Investigator as R.W.1 and has produced his Report as Ex.R1 as such, the Insurance company did all acts to duly discharge
the burden cast upon the insurance company and on the failure of the owner and the driver of the vehicle to respond to the summons and to appear
and prove the possession of valid driving license, adverse inference is to be drawn against them and the plea of the insurance company in this
regard is to be necessarily accepted.
Per contra, the learned Counsel for the Respondents/claimants would seriously oppose the contention so raised on the side of the learned
Counsel for the Appellant. It is contended by the learned Counsel for the Respondents/claimants that the burden is upon the Insurance Company
to prove the breach of policy conditions and the oral evidence of R.W.1 and Report-Ex.R1 is 4 of no much help to the Insurance Company and
the insurance company ought to have taken steps to summon the officials from the Regional Transport Office and having failed to do so, the insurer
cannot be permitted to avoid the burden cast upon the insurer or to argue that the burden so cast is duly discharged.
The perusal of the records revealed that though the claim petition is filed against both the owner and insurer of the vehicle and though column
16-A furnished the particulars about the driver of the vehicle, the driver of the vehicle is not impleaded as one of the Respondents in the claim
petition. The owner of the vehicle though duly served with notice did not choose to contest the claim and was set ex-parte even at the beginning of
the proceeding in the claim petition. The claim petition was seriously contested by the second Respondent/insurance company and the insurance
company has in the statement of objections filed in the claim petition not only denied the facts set out in the claim petition but has also denied the
existence of any insurance policy, possession of valid driving license by the driver of the vehicle. The plea of non-possession of valid driving license
is also suggested to P.W.1/claimants witness in the course of his cross-examination on behalf of the insurance company.
However, this Court is not inclined to accept the stand taken by the insurance company that no burden is cast upon the insurance company to
prove the own non-possession of valid driving license by the driver of the vehicle and 5 the same is only upon the driver or the owner of the
vehicle. It may be true that in the case cited by the learned Counsel for the Appellant, the Supreme Court is of the view that in terms of Section
106 of Evidence Act, the burden is upon the driver of the vehicle as the question whether the driver of the vehicle possess valid driving license or
not is only within his knowledge. The Apex Court has in the authority cited above observed so in the appeal preferred by the owner of the vehicle,
the supreme Court has also while holding so observed that the burden of proof ordinarily would be on the insurance company to establish that
there has been breach of condition of contract of insurance. That being he legal position, initial burden is upon the insurance company to prove
non-possession of the driving license by taking appropriate stops such as to call upon the owner and driver of the vehicle to produce the valid
driving license or to summon them during the course of enquiry as witness or to summon the officials from Regional Transport Office and once the
insurer discharges the initial burden subject to the outcome of the same, the burden shifts to the either driver or owner of the vehicle to disprove the
plea. But the Insurance company cannot be permitted to say that except raising the plea the insurer had no further onus and it is for the owner or
the driver to disprove the plea so raised by the insurer.
In the case cited before this Court, the Supreme Court shifted the burden upon the owner- cum-driver of the offending vehicle in the appeal filed
by the owner-cum-driver and the observation of the Supreme Court cannot be applied to 6 the instant case where the driver and the owner are
different persons and the driver is not made party to the proceedings. However, this Court is inclined to accept the contention raised on the side of
the insurer that the insurance company has duly discharged the burden cast upon them by summoning the owner and driver of the vehicle and by
examining R.W.1 Investigator and producing his Ex.R1-Report which would reveal the efforts taken on the part of the insurance company to go
and make enquiry with the driver and the owner and in the Regional Transport Office about the possession or non-possession of valid driving
license by the driver of the vehicle.
As already referred to above the owner of the vehicle remained ex-parte. The perusal of the records would reveal that the insurance company
has duly taken steps to summon the driver but that was not responded by the driver. R.W.1-Investigator appointed by the Insurance Company
independently investigated into this aspect and Ex.R1 report is the outcome of the same and the same consists of (1)a copy of the insurance policy
(2) Registration Certificate(3) Renewal of Contract carriage permit(4) alteration report filed by the Investigating Officer in Cr. No. 188 of 2007
arising out of the accident caused by the driver of the vehicle (5) copy of the post-mortem certificate (6)legal heir-ship certificate (7) death
certificate of the deceased (8) the copy of the final order passed by the Judicial Magistrate concerned, stopping further proceedings on the point of
limitation and (9) copy of the FIR in Cr. No. 188 of 2001. It is deposed by R.W.1 that he collected 7 the documents and enquired the first
Respondent/owner of the vehicle and driver of the vehicle and made due enquiry in the Regional Transport Office and found out that the driver has
not possessed valid driving license for driving the said vehicle. Though R.W.1 has not produced any statement in writing from the owner and the
driver of the vehicle to prove that he made some enquiry with them or any record in writing from the Regional Transport Office to say that he made
due enquiry in the Regional Transport Office. There is no reason to doubt the efforts taken by R.W.1 to hold some investigation in this regard.
Though the insurance company has seriously disputed its liability to pay any compensation on the ground of non-possession of valid driving license
by the driver of the vehicle and has taken all the possible steps as discussed above the Tribunal has not duly considered the same and has not
rendered any specific finding as to whether the driver was having valid driving license or not. The tribunal is seen to have brushed aside the defence
and has concentrated only on the rash and negligent aspect. In my considered view, the tribunal has grossly erred in adopting such an approach.
Be that as it may, this Court is now inclined to held that the failure of the insured who is one of the parties to the contract of the insurance to
appear and contest the objections raised by the other party to the contract regarding no possession of valid driving license by the driver of the
vehicle and the failure on the part of the driver to respond to the court summons to appear as witness, this Court is forced to draw an adverse
inference against them and to accept the plea 8 raised on the side of the insurance company that the driver of the vehicle did not possess valid
driving license at the time of the accident. In this regard the other judgment to be relied upon is reported in Sardari and Others Vs. Sushil Kumar
and Others, , wherein, the Supreme Court has observed that the owner of the vehicle has statutory obligation to see that the driver of the vehicle
who he authorised to drive holds valid driving license. But the owner failed to establish the exercise of such care and caution by him not to allow
the vehicle to be used by unlicensed driver.
In that event, this Court is inclined to invoke the doctrine of pay and recovery by directing the insurance company to answer the award granted
in favour of third party claimant and the insurance company shall recover the same from the insured.
However, one more aspect to be considered in this appeal is regarding the ratio of deduction to be made towards personal expenses of the
deceased. The learned Counsel for the Appellant has not raised any dispute about the fixation of monthly income at Rs. 2400/- p.m. The tribunal
has deducted one third amount towards his personal expenses and the same is now sought to be questioned on the ground that the deceased being
a bachelor, the claimants being his parents deduction cannot be one third amount but shall be 50%. I am not inclined to accept such a contention
raised in this case. Considering the age of the parents 9 who are 55 and 50 years at the time of accident and considering the fact that the parents
and the son were residing together and as there was no denial of the averments raised in paragraph 4 of the claim petition that the deceased senthil
kumar hailed from poor family consisting of aged parents and he was the only bread-winner of the family and the aged parents were solely
depending only upon his income for their day-to-day life, one third deduction in the monthly income for his personal expenses cannot be found
faulted. As the insurance company did not dispute the quantum of compensation as fixed by the tribunal which is otherwise just and reasonable the
award of the tribunal stands modified only insofar as it relates to the fixation of liability cast upon the insurance company by applying the doctrine of
''pay and recovery''.
In the result, the award of the Tribunal, dated 12.01.2007 made in M.C.O.P. No. 1561 of 2002, on the file of the Motor Accidents Claims
tribunal(Additional District and Sessions Judge-cum-Fast Track Court No. III),Madurai stands modified by directing the insurance company to
answer the award and to recover the compensation from the insured/owner of the offending vehicle. The award is confirmed in other respects. The
Civil Miscellaneous Appeal is accordingly disposed of. Consequently, connected Miscellaneous Petitions are closed. No costs.