IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Bhoomaram Versus Sugan Chand & Ors. S.B. CIVIL MISC. APPEAL NO. 906/1999 Date of Judgment : 22.10.2010 PRESENT HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI Mr. Rajendra Singh Choudhary for the appellant Mr. D.S. Udawat for the respondent-claimants Mr. Jagdish Vyas for the respondent-Insurance Company BY THE COURT This Civil Miscellaneous Appeal has been filed by appellant Bhoomaram, the owner of the offending vehicle, under Section 173 of the Motor Vehicles Act (for short, hereinafter referred to as the “Act”) against the judgment and award dated 22.09.1999 passed by the learned Motor Accident Claims Tribunal, Sojat, Camp Jaitaran, District Pali (hereinafter referred to as the “Tribunal”) in MACT Case No. 38/1995. The learned Tribunal by the impugned award partly allowed the claim petition of claimants Sugan Chand and Patasi filed under Section 166 of the Motor Vehicle Act and thereby awarded a compensation of Rs.1,59,400/- to Page 1 of 7 the claimants for the death of their son Ghanshyam, who died in the vehicle accident on 20.10.1994. However, while passing the award, the learned Tribunal exonerated the Insurance Company from its liability on the ground that the driver of the offending vehicle Jairam was not holding a valid driving licence to drive any vehicle, therefore, the award was passed only against the owner and the driver of the vehicle. Being aggrieved of the said award, the owner of the vehicle Bhoomaram has preferred this appeal. In substance, the appeal has been filed on two grounds :- (1) Whether the Tribunal was right in awarding the total compensation of Rs.1,59,400/- to the claimants for the death of their son Ghanshyam; and (2) Whether the Tribunal was right in exonerating the Insurance Company from its liability. On the first point, the learned counsel for the appellant argued that no fixed income of the deceased was proved by the witnesses examined by the claimants and in the absence of any specific evidence regarding the monthly or actual income of the deceased, the learned Tribunal Page 2 of 7 presumed the income of the deceased as Rs.2100/- per months and further determined the dependency as Rs.1400/- and thus, committed a serious error in awarding the excessive amount as compensation. He further contended that the learned Tribunal has awarded interest at the rate of 12% per annum on the amount of compensation till its realization, which is excessive rate of interest. Learned counsel for the respondent- claimants vehemently defended the judgment of the learned Tribunal and argued that A.W.1 Sugan Chand, the father of the deceased, specifically deposed in his statement that the monthly income of the deceased Ghanshyam was Rs.3000/- and the evidence of this witness has not been shattered even in the cross-examination and A.W.2 Patasi, the mother of the deceased, also deposed the same facts and no question in the cross-examination was put to her by the appellant, therefore, the learned Tribunal determined the income of the deceased in a right and proper manner and the finding of the learned Tribunal in this regard does not suffer from any infirmity or illegality. Learned counsel for the respondent No. 1 and 2 further argued that the learned Tribunal awarded the compensation on lower side. Page 3 of 7 I have perused the judgment of the learned Tribunal and the evidence available on record and also considered the arguments of the learned counsel for the parties. A.W.1 Sugan Chand and A.W.2 Patasi deposed in their statements that the monthly income of the deceased was Rs.3000/-. Looking to this fact and the age of the deceased, in my view the learned Tribunal decided the issue No. 2 in right and proper manner and it suffers from no infirmity or illegality, therefore, so far as the ground No. (1) is concerned, it answered in negative. The next question is regarding the liability of the Insurance Company. Learned counsel for the respondent Insurance Company would like to argue that at the relevant time the vehicle was being driven by Jairam, who was not having valid driving licence and this fact was within the specific knowledge of the owner of the vehicle Bhoomaram, who is appellant in the present case. It is the owner who should have proved this fact that the driver who driving the vehicle at the relevant time was having a valid driving licence and contrary to it appellant Bhoomaram did not produce any evidence to prove this fact and it Page 4 of 7 was his liability to adduce evidence in this regard and to prove this fact. Learned counsel for the Insurance Company in support of his submissions relied upon the following judgments :- (i) Bhuwan Singh Vs. Oriental Insurance Co. Ltd. And another [2009 ACJ 1426] (ii) National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and others [2008 ACJ 2860] (iii) Sardari and others VS. Sushil Kumar and otehrs [2008 ACJ 1307] (iv) Prem Kumari and others Vs. Prahlad Dev and otehrs [2008 ACJ 776] Further, he relied upon the judgment of the co-ordinate Bench of this court dated 02.08.2010 passed in S.B. Civil Misc. Appeal No. 502/1995, Smt. Sita Devi Vs. Mst. Sugra & Ors. Learned counsel for the appellant vehemently argued that it was the duty of the Insurance Company to prove the policy and further to prove the fact that the driver of the vehicle was not having a valid driving licence and in the absence of such evidence, the learned Tribunal decided the issue No. 2 and 3 erroneously and therefore, it requires to be interefered. I have perused the judgments cited by the learned counsel for the Insurance Company and Page 5 of 7 considered the arguments of the learned counsel for the parties. While considering the question as to whether the learned Tribunal was justified in exonerating the Insurance Company on the ground that the driver of the offending vehicle was not holding a valid driving licence on the relevant date, i.e. On the date of the accident, I am of the view that the finding of the learned Tribunal in this regard has to be upheld on the facts and in the light of the judgments cited by the learned counsel for the Insurance Company. As per the law laid down by the Hon'ble Supreme Court in the case of Bhuwan Singh Vs. Oriental Insurance Co. Ltd. And Anr. (supra), it was the duty of the owner of the vehicle to prove the fact that at the relevant time the driver of the vehicle was holding a valid driving licence or not because this fact was within the specific knowledge of the owner of the vehicle. Similar view was expressed by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and others (supra). The co-oridiante Bench of this court in S.B. Civil Misc. Appeal No. 502/1995, Smt. Sita Devi Vs. Mst. Sugra & Ors. expressed similar view. So far as the fact whether Jairam was having valid driving licence while driving the Page 6 of 7 offending vehicle on the relevant time, the charge-sheet was filed against Jairam and in the First Information Report, it was specifically mentioned that at the time of the accident, the vehicle was being driven by Jairam. The learned Tribunal awarded the compensation alongwith interest at the rate of 12% per annum from the date of the accident till realization of the amount of compensation, which seems to be excessive because it is much more higher rate than the rate of interest which banks etc. gives on deposits. I am of the view that the reasonable rate of interest is 8% per annum. Accordingly, the rate of interest is modified to 8% per annum instead of 12% per annum as awarded by the learned Tribunal. In view of the discussion made above, there is no substance in the grounds raised by the learned counsel for the appellant except regarding the rate of interest on the compensation awarded by the learned Tribunal. Accordingly, the appeal is partly allowed to the extent as indicated above. [KAILASH CHANDRA JOSHI],J. Pramod Page 7 of 7