Heard Sri Ajay Singh, learned counsel for the appellant and Sri Vashishtha Tewari, learned counsel for the respondent-claimant (s). None has appeared on behalf of owner-respondent though 19 years have elapsed.
This appeal, at the behest of the Oriental Insurance Co. Ltd., challenges the judgment and award dated 27.7.1999 passed by Motor Accident Claims Tribunal/III Additional District Judge, Deoria (hereinafter referred to as 'Tribunal') in M.A.C. No.144 of 1997 awarding a sum of Rs.2,89,200/- with interest at the rate of 12%.
Facts are not necessary. The accident occurred between a scooter and motorcycle whereby certain deaths occurred which is not in dispute. The issue of negligence though raised, as ground has not buttressed herein. The only ground raised now is regarding breach of policy condition under Section 147 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act, 1988').
It is submitted by Sri Ajay Singh, learned counsel for the appellant, that neither the driver nor the owner appeared before the Tribunal nor did they give copy of the driving license to the claimants. The Tribunal has sifted the burden on the Insurance Company. It is submitted that this sifting could not have been done as it was the primary duty of the owner to establish that there was no breach of policy conditions.
The Insurance Company could lead evidence only after there was some evidence produced by owner or driver that there was no breach of policy and evidence led by the owner or the driver to show that the driver of the vehicle possessed proper driving license. The Apex Court in National Insurance Company Ltd. Vs. Jugal Kishore and others, AIR 1988 SC 719 has held that a document in possession of a person must produce the same otherwise adverse inference can be drawn. In this case the best witness was the owner. Had he produced the document then only the onus would sift on Insurance Company. I am supported in my view by the decision of the Apex Court in Pappu and others Versus Vinod Kumar Lamba and others, reported in AIR 2018 SC 592. The owner miserably failed to appear even before this Court though served long back.
Hence, on this ground, the appellant is granted recovery rights as 20 years have elapsed from the filing of the appeal.
The rate of interest, without going into the other aspect of the quantum, could not have been 12% but it would be 9%.
In view of the above, this appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent.
Order Date :- 26.8.2019 DKS