1. By way of this appeal, the appellant has challenged the judgement and award dated 19.08.1996 passed by the Motor Accident Claims Tribunal (Special) Porbandar in MACP No. 83 of 1994 whereby the Tribunal awarded an amount of Rs. 1,02,750/- alongwith interest at the rate of 12% per annum from the date of application till realization payable by respondents no. 1, 2 & 3 to the original claimant. The Tribunal has exonerated the respondent no. 5-Insurance Company-present respondent no. 1.
2. The original claimant had filed claim petition seeking compensation to the tune of Rs. 2,25,000/- in respect of the vehicular accident which occurred on 14.12.1993 when the appellant was travelling in a rickshaw bearing No. GJ-11-T 6576 alongwith goods when a dumper truck bearing registration no. GS-11-T 9496 hit the rickshaw. The appellatn sustained injuries on various parts of his body. The appellant therefore filed claim petition under the said circumstance. The Tribunal after hearing the parties passed the aforesaid award.
3. Mr. Mehul Shah, learned counsel for the appellant has contended that the Tribunal ought not to have exonerated the Insurance Company and ought not to have dismissed the claim of the appellant against the insurance company and that the Tribunal ought to have held that the driver, owner and the insurance company are jointly and severally liable to pay compensation to the claimant.
3.1 Mr. Shah further submitted that the claimant should not be made to suffer in the instance where the owner/driver failed to produce licence and necessary documents pertaining to the vehicle. He submitted even no point was put forward to then claimant in this regard by learned advocates for the insurance company during the cross examination. In this regard he has relied upon a decision of the Apex Court in the case of United India Insurance Co. Ltd vs. Desai Babarbhai Manaklal and Others reported in 1996(1) GLH 582 and in the case of United India Fire & General Insurance Co. Ltd. vs. Surindarsinh Gurasinh & Others reported in 22 GLR 964.
4. Mr. K.M Parikh, learned counsel for the respondent has supported the award of the Tribunal and submitted that the Tribunal has passed the award in accordance with law after considering the facts and circumstances of the case and therefore no interference is called for in the matter. He however could not controvert the contention regarding claimants should not be made to suffer for non production of licence and other documents.
5. This court has heard the parties and perused the papers on record. The only contention raised by the learned advocate for the appellant is that the insurance company is wrongly exonerated. As regards this the Tribunal has observed that though the driver of the offending vehicle was negligent in driving, as the owner could not produce on record the valid licence and rickhshaw permit, the insurance company of the rickshaw should be exonerated from being liable to pay compensation.
5.1 At this juncture, the decision of this Court in the case of United India Insurance Co. Ltd (supra) is perused wherein it is held that the claimant cannot and need not be denied his due compensation on the ground of non-production of the driving licence and that instead the insurance company can lay its claim against the driver and owner on the basis of adverse inference arising from non-production of the driving licence.
5.2 In the case of United India Fire & General Insurance Co. Ltd. (supra) it is held that it is the duty of the insurance company to substantiate the plea that the vehicle was driven by a person who was not duly licensed and that a mere averment to that effect in the written statement and a mere suggestion to a party in that behalf in a cross-examination is not sufficient to discharge the said duty.
6. The insurance company has not proved the point of the driver not duly licences beyond doubt. Even the evidence of the claimant at Ex. 42 reveals that the claimant was not put forward any question regarding the aforesaid point in the cross examination by the learned advocates for either insurance companies. Therefore, this court considering the decision cited hereinabove is of the opinion that the Tribunal committed an error in exonerating the insurance company. The respondent insurance company cannot be said to be justified in denying the claim of the claimant on the ground that the driver was not holding a valid driving licence. The insurance company-present respondent no.1 ought to have been fastened with the liability to answer the claim.
7. In the premises aforesaid, appeal is allowed. The insurance company – present respondent no. 1 shall be liable to pay compensation to the original claimant jointly and severally alongwith original opponents no. 1 to 3. It shall, however, be open to the insurance company -respondent no. 1 to recover the amount of compensation from the owner of the rickshaw. The award of the Tribunal is modified accordingly.
(K.S. JHAVERI, J.) Divya//