Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 411 of 2004
Appellant :- National Insurance Co Ltd Respondent :- Rajeev Kumar Alias Raju And Others Counsel for Appellant :- N.K.Srivastaa
Counsel for Respondent :- Nigmendra Shukla
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri N.K. Srivastava, learned counsel for appellant and Sri Nigmendra Shukla, Advocate for claimant-respondents. None has appeared for the owner.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred against the judgment and award dated 10.11.2003 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No. 12, Meerut (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 697 of 1995 awarding a sum of Rs.1,66,400/- with interest at the rate of 7% per annum as compensation to the claimant.
3. The accident had occurred within the jurisdiction of District- Moradabad and the claimant/respondent No.1 himself was a resident of District- Moradabad (as disclosed in the disability certificate filed on record by himself) and the opposite party/ respondent No.2 was a resident of District -Bareilly, meaning thereby that in view of the provision of Section-166(2) of the Motor Vehicles Act, this claim-petition ought to have been filed at Moradabad and/or Bareilly and therefore the Tribunal at Meerut had no jurisdiction to entertain and decide the present claim- petition.
4. The owner and driver had not care to contest the claim proceedings and despite summons being issued to her and the charge-sheeted truck- driver Iqbal Husain on the date fixed on 13.02.2003, 24.02.2003 and 6.03.2003 to appear as witness and file the driving licence, they did not put in appearance and therefore an adverse inference had to be drawn by the learned Tribunal as against them that the charge- sheeted driver of the Truck NO. UGL/84 was not duly licensed and as such the learned Tribunal has erred in deciding issue No.2, by casting a negative burden-of-proof on the appellant Insurance Company to disprove the validity of the document which was not even on record before it.
5. Prima facie, the insurance company has proved that the driver did not have license to drive vehicle in question.This Court is not going into that fact whether it was light motor vehicle or heavy motor vehicle. The amount has already been deposited and which might have been disbursed to the claimant. The only way the insurance company can be benefited is granting them recovery rights from the owner of the vehicle in question by way of the mode suggested by the Apex Court in Pappu and others Versus Vinod Kumar Lamba and others, reported in AIR 2018 SC 592.Therefore, the recovery rights will have to be granted as it is prima facie proved that the driver did not have valid driving license.
6. It is the duty of the owner first to discharge his onus of showing that his driver had proper driving licence. In this case he has not discharge the same.
7. It was the duty of the owner to come out with clean hands. The apex court in National Insurance Company Ltd. vs. Jugal Kishor & Others, AIR 1988 SC 719 has held as follows:
"The attitude of not filing copy of policy of insurance is worth mentioning. 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. The Supreme Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in cause to produce the said document and such party should not be permitted to take shelter behind abstract doctrine of burden of proof. This duty is greater in the case the instrumentalities of the state such as the appellant Insurance Company who are under an obligation to act fairly. In many case even the owner of the vehicle for reasons known to him does not chose to produce the policy or a copy thereof. It has to be emphasised that in all such cases where the Insurance Company concerned wishes to take a defence in a 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."
8. The appeal is partly allowed. Recovery rights shall be granted to the appellant. Record of the lower Court be sent back. It is the duty of the owner or the driver to first discharge the burden
Order Date :- 31.05.2019 Shubhankar