IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 2985 of 1996 to FIRST APPEALNo 3010 of 1996 with CIVIL APPLICATION No 7594 of 2003 Date of Decision: /10/2004 -------------------------------------------------------------- UNITED INDIA INSURANCE CO.LTD. Versus VALJIBHAI VASHRAMBHAI MONPARA DECEASED BY HIS HEIRS. (for full cause title, see next sheet) -------------------------------------------------------------- Coram: The Hon'ble Mr.Justice Bhawani Singh, Chief Justice The Hon'ble Whether approved for reporting? For the Appellant Mr.Adv.P.V.Nanavati [ Insurance Company ] For the Respondent Mr.Adv.V.B.Gharaniya -------------------------------------------------------------- PER: H.K.RATHOD, JUDGE (CAV):- Heard learned advocate Mr.P.V.Nanavati on behalf of the appellant-Insurance Company and learned advocate Mr.V.B.Gharaniya for respondents - Claimants. --------------------------------------------------------- Whether reporters of Local Papers may be allowed to see the Judgment? .RS 2. #. In this group of appeals, award passed by the Motor Accident Claims Tribunal at Bhavnagar in M.A.C. Petition No.202 of 1992 [ main matter ] with other petitions being Nos.203, 244, 245, 204, 235, 243, 246, 248, 254, 261, 262, 247, 282, 284, 285, 290, 291, 292, 293, 294, 297, 298, 299, 300, 301, 302, 303, 307, 308, 309, 310, 263, 264, and 266 of 1992 dated 9th April, 1996 is under challenge. #. All these claim petitions arising out of one motor vehicular accident which had taken place on 14th January, 1992 at about 0.30 Hrs. [a.m.] near outskirts of village Ambla on Bhavnagar - Rajkot State Highway. As the common question of law and facts are involved in this group of appeals, the subject matter is same award, the Tribunal has consolidated and disposed of by common judgment. The Tribunal had recorded evidence in M.A.C.Petition No.202 of 1992. #. The brief facts of the case are as under : In the accident in question, one mini luxury bus bearing registration number GJ-4-T-3049 is involved and is completely burnt with its all 35 occupants. According to the claim form Exh.48 produced by the opponent-1 before the Insurer, one Girirajsinh Dilawarsinh Chudasama was driver of the said mini luxury bus at the relevant time. The whereabouts of said Girirajsinh Dilawarsinh Chudasama are not known to anyone and he is also feared to be dead in this tragic accident. Looking to the immediate aftermath of the incident setting ablaze the mini luxury bus, there was no room for any of the occupants of the bus to escape. Except one Ghanshyambhai Devjibhai who was also traveling in the ill fated bus, all the passengers are burnt alive. As all the dead bodies were completely burnt and reduced to ash, identification was impossible and therefore, only one inquest Panchnama comprising the names of all occupants of the bus is prepared. According to the claimants, the driver of the said mini luxury bus was driving it in rash and negligent manner at excessive speed and endangering the human lives. The said mini luxury bus belongs to opponent-1 and was duly insured with the opponent-2 - The appellant United Insurance Company Ltd.. Most of the deceased are girls aged between 20 to 25 years, working in Madhav James - a diamond factory as diamond cutter. The claimants are the legal heirs and representatives of all the deceased persons, they sustained damages and great loss and therefore, claim petitions were filed before the Tribunal. All the deceased girls were working in Sihor branch of Madhav James as diamond cutting labourers. According to the claimants, all the deceased girls including the Manager of Sihor Branch Diamond Factory had organised a tour programme of Tulsi-shyam [Saurashtra] and Prabhas-Patan. For that purpose, they had engaged one mini luxury bus bearing registration number GJ-4-T-3049 of Ashapura Travels. The date and time of the tour programme was finalised and it was decided to proceed on the night of 13.1.1992. Accordingly, all the preparations of the tour programme were made and as decided, all the deceased were waiting for the said Mini Luxury Bus at Sihor. The family members of all the deceased had come to escort the tour party and it was just like a mini festival. The said bus started from Bhavnagar and reached Sihor at 11.45 P.M. on 13.1.1992. All the deceased boarded the said mini luxury bus and started for Tulsi-Shyam. According to the claimants, driver of the mini luxury bus GJ-4-T-3049 was driving the said bus in rash and negligent manner, in excessive speed endangering the human lives. When the said bus reached near the turn of village Ambla, due to rash and negligent driving of driver of the said mini luxury bus, it dashed with the bridge on the road, caught fire and fell in the bridge. There was no chance for all the occupants of the bus to escape and all of them were burnt alive, except one Ghanshyambhai Devjibhai. All the dead bodies of the deceased were completely burnt and reduced to ash and therefore only one Inquest Panchnama was drawn comprising the names of all the deceased. Offence was registered and investigation was carried out. On hearing the said news of tragic incident, Sihor observed a black-day and complete Bandh on the day of the unfortunate incident. The citizens and leading personality of the city made a public appeal for help and thereby collected handsome amount which was disbursed amongst the bereaved family members of the deceased. Accordingly, Rs.40,000/- were paid to the claimants from the fund collected by the social workers and leading personality of the area. In all, 35 petitions were filed wherein interim compensation of Rs.25,000/has been awarded to all the claimants of each case. It did not transpire from the evidence of the petitioners who was driving the said mini bus at relevant time. The owner of the bus opponent-1 has filed one accident claim form before the insurer viz. appellant. In that claim form, vide Exh.48 the owner stated that one Girirajsinh Dilawarsinh Chudasama was driving the said luxury bus at the relevant time. Thereafter, one certificate was produced by the owner at Exh.114 in which it is stated that Girirajsinh Dilawarsinh Chudasama was holding a valid driving licence even to drive heavy motor vehicle. Licence number is also mentioned in the said certificate. According to the appellant, one employee of R.T.O. Ahmedabad has played mischief and adopted a corrupt practice and he has issued a false certificate. According to the appellant, one rickshaw driver Nanajibhai Velajibhai Parmar was holding the said licence number and it was licence for auto rickshaw only. Accordingly, the main contention was raised by the appellant before the tribunal that driver Girirajsinh was not holding a valid driving licence at material time and therefore, the appellant is not liable for the damages, if any, caused to the claimants. #. The owner opponent-1 had filed written statement at Exh.37 and denied the averments made in the petitions. The owner raised contentions about limitation and non joinder of necessary parties. The owner has also contended that Mahipatsinh Gohil was not driver of the said bus at the relevant time but one Girirajsinh Dilawarsinh Chudasama was the driver at the material rime and he also expired in the said accident. #. The appellant - opponent-2 insurance company had filed its written statement vide Exh.15. Appellant has contended before the tribunal denying averments made in the petition and main contention raised was that one Girirajsinh Dilawarsinh Chudasama was the driver according to the owner in the bus at the relevant time. But he was not holding a valid driving licence at material time and he is absconding since the day of the accident. Therefore, contention of appellant is that bus was being plied in violation of the terms and conditions of the permit and also in contravention of the conditions incorporated in the Insurance Policy and therefore, the appellant is not liable for the damages, if any, caused to the claimants. The further contention raised was that in the bus more than prescribed number of passengers were travelling and bus was over loaded at the relevant time. The appellant insurance company has also denied all the averments made in the claim petitions. During the course of pendency of the claim petitions, one application Exh.25 filed by the appellant with a prayer to join M/s Madhav James as necessary party. The Motor Accident Claims Tribunal dismissed the said application by order dated 12th February, 1996. According to the evidence on record, the deceased persons had given a share of Rs.200/- each and it was one tour of all deceased persons and the said tour was organised visiting Saurashtra at the relevant time. There is no evidence on record that M/s Madhav James, Sihor had hired the said bus for tour programme of all the deceased persons. #. One passenger Shri Ghanshambhai who fortunately saved out of the said accident, had lodged the complaint. From the police investigation papers, chargesheet was prepared against said Girirajsinh Chudasama whose whereabouts not found and ultimately, it was believed that said Girirajsinh might have succumbed to the injuries in this unfortunate accident. There is no other material from which whereabouts of said Girirajsinh can be found out because P.M. examination could not be done and only one inquest Panchnama was prepared and it was impossible to identify the dead bodies of particular person. However, the Tribunal has presumed that one person was driving the said bus at the relevant time. #. Thereafter, the Tribunal has framed the issues at Exh.22 in M.A.C.Petition No.202 of 1992 on 7th May, 1992. Thereafter, one application was given by the appellant to add one issue which was allowed and accordingly, Issue No.6 came to be added by order dated 12th February, 1996. The following issues were framed by the Tribunal. "(1) Whether the claimants prove that driver of opponent No.1 was rash and negligent in driving motor vehicle bearing No. GJ-4-T-3049 ? (2) Whether the claimants prove that deceased died because of rash and negligent act of the driver of opponent No.1 ? (3) Whether the claimants are entitled to any compensation ? If yes, to what extent ? (4) Who are liable to pay and what extent ? (5) What order and decree ? (6) Whether it is proved that the driver Girirajsinh Dilawarsinh was not holding an effective and valid driving licence at the time of accident ? If yes, what is its effect ?" #. Thereafter, oral evidence was recorded by the Tribunal of the claimants in each petition. No one was examined by the owner opponent-1 and appellant-opponent-2 insurance company has examined two witnesses one Babubhai Sundarlal Patva, Head Clerk of RTO, Ahmedabad at Exh.200 and Jitendrabhai Kalabhai Bhojani, Administrative Officer of United India Insurance Co. Ltd., Bhavanagar at Exh.217. The Tribunal has allowed documentary evidence to be adduced in all these claim petitions in a manner as mentioned in para-12 of the award. The opponent-2 appellant-insruance company has produced the following documents before the Tribunal. (1) Certificate of RTO, Ahmedabad to the effect that Girirajsinh Dilawarsinh Chudasama was holding Motor Driving Licence No.390559 / AR, Base No.32647/AR Exh.114. (2) Certificate of RTO, Bhavnagar to the effect that of grant of contract carriage permit Exh.213. (3) Certificate of Fitness of RTO Bhavnagar Exh.214. (4) Letter of RTO Officer, Ahmedabad enclosing therewith the true copy of T.T.C. Card Exh.215 & 216." The Tribunal has, thereafter, appreciated the facts, evidence and circumstances of the case on the basis of established principle of law and heard arguments of the respective parties and passed the final order on 9th April, 1996. The Tribunal has passed the final orders in all the petition by partly allowing the petitions. The Tribunal has directed the respondents owner and insurance company - appellant herein to pay jointly and severally the amount of compensation to the claimants together with interest thereon at the rate of 15 % per annum from the date of petitions till realisation with proportionate cost in the following manner. : Petition Number : : Awarded Amount : 1. 202/92 Rs.4,52,000/- 2. 204/92 Rs. 50,000/- 3. 203/92 Rs.4,04,000/- 4. 235/92 Rs.2,12,000/- 5. 243/92 Rs.2,12,000/- 6. 244/92 Rs.1,16,000/- 7. 245/92 Rs.1,16,000/- 8. 246/92 Rs.1,16,000/- 9. 248/92 Rs.1,16,000/- 10. 254/92 Rs.1,16,000/- 11. 161/92 Rs.1,16,000/- 12. 262/92 Rs.1,16,000/- 13. 247/92 Rs.1,16,000/- 14. 282/92 Rs.1,16,000/- 15. 284/92 Rs.1,16,000/- 16. 285/92 Rs.1,16,000/- 17. 290/92 Rs.1,16,000/- 18. 291/92 Rs.1,16,000/- 19. 292/92 Rs.1,16,000/- 20. 293/92 Rs.1,16,000/- 21. 294/92 Rs.1,16,000/- 22. 297/92 Rs.1,16,000/- 23. 298/92 Rs.1,16,000/- 24. 299/92 Rs.1,16,000/- 25. 300/92 Rs.1,16,000/- 26. 301/92 Rs.1,16,000/- 27. 302/92 Rs.1,16,000/- 28. 307/92 Rs.2,12,000/- i.e. Rs.2,00,000/- 29. 308/92 Rs.2,12,000/- i.e. Rs.2,00,000/- 30. 309/92 Rs. 70,000/- 31. 310/92 Rs.1,16,000/- 32. 263/92 Rs.1,16,000/- 33. 264/92 Rs.1,16,000/- 34. 303/92 Rs.1,16,000/- 35. 266/92 Rs.1,16,000/- ##. This group of appeals and civil applications Nos.7820 to 7845 of 1996 preferred therein admitted by this Court. The Division Bench of this Court [ Coram : S.M.Soni and H.R.Shelat, JJ. ] vide interim order order dated 7th January, 1997 and accordingly Rule is made absolute in each application. The aforesaid interim order dated 7th January, 1997 is reproduced as under : "Respondents are duly served. The original claimants are neither present nor represented by Advocate. Original opponent No.1 - owner is present in person before this Court. Heard the learned Advocates for the applicant. In the facts and circumstances of the case and in particular in view of the judgment in the case of New India Assurance Co. Ltd. v. Mandar Madhav Tambe & Ors. [AIR 1996 SC 1150], the liability of the insurance company does not arise as it is the case of the applicant that the driver was not holding any licence, much less valid licence. In view of this fact situation, we are of the opinion that if the applicant company is directed to file undertaking in each matter within four weeks from today, signed by its responsible concerned officer, the further execution of the award qua the company is stayed. The applicant company shall undertake before this Court that in case the applicant fails in the appeal, it shall pay up the award amount with costs and interest within four weeks from the receipt of the certified copy of the judgment and award of this court, irrespective of its desire to challenge the same. In case of default, the concerned officer, even if he might have retired, will be liable for contempt. Rule is made absolute accordingly in each of the matter. No costs. [ S.M.Soni, J. ] [H.R.Shelat, J.]" ##. Learned advocate Mr.P.V.Nanavati vehemently raised contention that at the relevant time and when the accident occurred the driver Girirajsinh Dilawarsinh Chudasama was not holding valid driving licence, therefore, appellant insurance company is not liable for the damages, if any, caused to the claimants. He also relied upon the terms and conditions of the insurance policy as well as certificate of the R.T.O. issued to the effect that driver was holding a valid driving licence. According to learned advocate Mr.P.V.Nanavati, said certificate is adduced at Exh.114 which is a false and fabricated document. According to him, the owner had obtained a false and fabricated certificate in respect of the driving licence of the driver. As a matter of fact, licence No.390559 / AR is issued to one Nanaji Velajibhai Parmar and it is a licence in respect of autorickshaw. He also relied upon document Exh.216 to prove the fact about above said licence was issued for driving autorickshaw in favour of said Nanaji Veljibhai Parmar of Ahmedabad. He compared both the documents Exh.114 with Exh.216 and supported that document Exh.114 is false and fabricated document. One witness Babubhai Patva was examined by the appellant vide Exh.200 and he produced card of driving licence No.390559. According to his deposition, this licence is issued from Ahmedabad region and it is a licence of autorickshaw. The said licence of above number is not issued in favour of Girirajsinh Dilawarsinh Chudasama. However, said witness also deposed that R.T.O., Ahmedabad has signed Exh.114 and also said Shri J.M.Solanki has also signed in this certificate Exh.114. In short, the submission is that certificate Exh.114 is a false document. The second contention raised by learned advocate Mr.Nanavati is that the rate of interest 15 % is on higher side and looking to the present rate of interest prescribed by the Reserve Bank of India, the rate of interest may be reduced to that extent. Except that, no other submission made by the learned advocate Mr.P.V.Nanavati. ##. Learned advocate Mr.Gharaniya for the respondents claimants supported the award passed by the Tribunal. ##. We have considered submissions made by the learned advocates for the parties. The Tribunal, on the basis of the evidence, facts and circumstances of the case, has applied principle of "res ipsa loquitur" to the case. The Tribunal has also considered that it is clear case of gross rashness and negligence on the part of the bus driver. The said accident had taken place during night hours and the bus was on the State High-way. There was a culvert. Said bus dashed with the culvert. As a result thereof, it caught fire and the bus was thrown away in the bank of the culvert. As a result thereof, fire spread over the entire bus and all the 35 persons who were traveling in the bus, succumbed to the injuries except one person Ghanshyambhai, who has lodged the complaint, fortunately saved in this incident. The said incident is really a tragic and unfortunate and pitiable in accident ever happened in the history of accidental crimes. As many as 35 persons succumbed to the injuries and accidental injuries. In the light of these facts, the Tribunal has rightly held that bus was being driven in rash and negligent manner at the relevant time by its driver. Accordingly, the Tribunal has rightly decided the Issue Nos.1 & 2 in affirmative. ##. The Tribunal has examined the Issue Nos.4 & 6 which related to the main contention raised by the learned advocate Mr.P.V.Nanavati that at the relevant time, the driver of the bus was not having valid licence to drive the vehicle. This aspect has been examined by the Tribunal at length and also appreciated the evidence led by the Insurance Company. After considering oral evidence as well as cross examination of the concerned witnesses, the Tribunal discussed in para-45 to 50 of the award. The Tribunal, thereafter, considered various decisions of the High Court and Supreme Court and come to the conclusion that appellant insurance company has failed to prove that person who was driving the vehicle in question at the relevant time did not possession a valid driving licence. The Tribunal has further come to the conclusion that it is also not proved that driver was disqualified from holding such driving licence. The owner and driver have not been examined by the appellant company. The owner was available. However, he did not step into witness box and no attempt was made by the appellant company to summon the driver. The Tribunal has also discussed that looking to the evidence Exh.114 in which bus and licence number and type of vehicles are also mentioned. It also transpires from the admission in cross examination of the witnesses of the insurer appellant company that Exh.114 cannot be said to be a false document. The Tribunal has also observed that appellant company has not produced correct driving licence of the driver driving the bus in question. Therefore, an adverse inference can be drawn against the insurance company. The Tribunal has also observed that Insurance Company has not placed on record acceptable material in support of their contentions. The burden upon the company to discharge its onus to prove that driver was not having valid driving licence. The appellant company has also failed to discharge its onus of proving the driver had not valid driving licence. In absence of driver, it cannot be said that he did not possess driving licence at all. It is the duty of the insurance company to prove by cogent evidence that a particular person was driving the vehicle in question and further it must be proved that he was not holding a valid driving licence and he was disqualified from holding such licence. The insurance company had not proved by leading oral evidence as to who was driver and whether he had valid driving licence or not. In such circumstances, the insurance company cannot escape from its liability. In view of above observations made by the Tribunal, the relevant discussion of the oral evidence of the witnesses of the insurance company are important and therefore, the same are quoted as under : "45. Both these issues are closely connected with each other and, therefore, they are answered accordingly. It is the main contention of the insurer that driver Girirajsinh was not holding a valid driving licence at material time and, therefore, the insurer is not liable for the damages, if any, caused to the petitioners. The Insurance Company relies on several authorities and also on the terms and conditions of insurance policy, as well as Certificate of RTO issued to the effect that driver was holding a valid driving licence. That certificate is adduced at Exh. 114. It is the main contention and argument of the insurer that Exh. 114 is a false and fabricated document. It is argued that a false and fabricated certificate has been obtained by the owner in respect of the driving licence of the driver. It is argued that as a matter of fact, licence No. 390559/AR is issued to one Nanjibhai Veljibhai Parmar and it is a licence in respect of an auto rickshaw. However, on perusal of Exh. 114, it transpire that it is a licence issued to Girirajsinh Dilawarsinh Chudasama in respect of light, medium and heavy motor vehicles. One document Exh. 216 is produced in evidence by the insurer to prove that above said licence was issued for driving auto rickshaw in favour of Nanjibhai Veljibhai Parmar of Ahmedabad. Therefore, comparing Exh.114 with Exh. 216, it is argued that admittedly, Exh. 114 is a false and fabricated document. One witness Babulal Patva is examined at Exh. 200 on behalf of the insurer. He has produced card of driving licence No. 390559. He has deposed that this licence is issued from Ahmedabad region and it is a licence of auto rickshaw. he has deposed that licence of above said number is not issued in favour of Girirajsinh Dilawarsinh Chudasama. He has deposed that RTO Officer, Ahmedabad has signed in Exh. 114 and also one JM Solanki has signed in this certificate Exh. 114. According to him, he is under the belief that Certificate Exh.114 is a false document. 46. This witness is cross examined at length by the LAs of the applicants. His cross examination is very material. He has deposed in para 3 that after following prescribed procedure, Exh.114 has been issued by RTO Officer, Ahmedabad. He has deposed that he has no personal knowledge as to whether any endorsement has been made in RTO Office Ahmedabad to the effect that Exh.114 is issued falsely. He has deposed that Shri Solanki had authority to place his signature in Exh.114. He has also deposed that due to mistake and over sight, licence number might have been wrongly mentioned in Exh. 114. He has deposed that no proceedings have been initiated against Shri Solanki for issuing a false certificate. So many licences are being issued from RTO, Ahmedabad. So many vehicles used to come for inspection. One Register with all the details is kept in respect of all the licence holders in the office of RTO, Ahmedabad. Nature of licence i.e. licence of heavy, medium or light vehicle is being mentioned therein the register. Fee Register and accounts are also being maintained by the same office. Photoraphs are being affixed in licence and one copy is being kept in the RTO Office. He has deposed that register is being maintained in the office and from that register, it can be said that how many persons are given licence for driving motor vehicles. He has deposed that there is signature of RTO Officer Shri Patel in Exh. 114.