.f ^ mGH COURT OF €^HATTISC»RHAT BHAKPCR WLA. No. 3/2006 APPBLLAN'KS Onental fasiirance Co. Ltd. Versus RBSPONDENTS Mediami Mangdu and others Judgment post for ^"j-7-2007 Sd/- Dhirendra Mishra Judge i^i. „I'j""^''^";^!"^;^^?" ^ ^ ^f HIGH COURT OF GHHATIlSGyUlH ATBHASPUR M.A. No. 3/2006 APPBLLANT8 INSTORANCE Oriental Insurance Co. Ltd. Main Road, Jagdalpur fhrough Divisional Manager, Division Qffice, Opposite High Court, Bilaspur (C.O.) Versus RESPONDEWT8 1. Medianu Mangdu, S/o Kosa Qond, CLAIBIANT aged about 20 years, R/o vlllage Miuigapara, Korra, R/o Qadu'as, Tehsil, Distt. Dantewara (C.Q.) DRWBR 2. Chandra Bose, S/o Balsingh Mahara, aged 19 years, R/o vfllage- Korra, P.S. Gadirass, District' Dantewara (CG) Owttl^t 3. N.L. Bindra, S/o Jodhraj Bindra, aged 60 years, R/o Patanampara, Sukma, Distt. Dantewara (C.O.) Shri Abhisek Sii^h with Shri Ghanshyam Patel, coiuisel for the appellant None appears for the respondents. JUDGMBNT Dhlrendra BUshni. J. The appellant - insurer taas preferred tfais appeal against the award dated 5th October, 2005 passed by leamed Additioaal Motor Accident Claims Tribunal, South Bastar, Dantewara in Claiin Case No. 44/2005 wherety the appellant aad respondents No. 2 and 3 are jomtty and severety held liable for satisfying (he award of Rs. 1,90,000/- wlfh interest at fhe rate of 7.5% fi-om 24-12-2003 passed in fetvour of the respondent No. I- Oaimaiit. .2. Brief facts teadmg to fhe filing of the elaim petition are fhat on 29-6-2003, claiinant was retuming to his viUage on a bicycle when Jeep No. CG 18/T.0118 owned by respondent No. 3, driven by respondent No. 2 and uisured by appellant dashed his bicycle SX)DI behind resiiltu^; in grievous mjuries over leflt -tT :n leg, left and nght shouMer of ttae clainiant and be became permanently disabled. The owner and fhe dnver in fheir joint written statement demed fhe averments of (he claim petition and iu altemative pleaded fhat the vehicle was insured by fhe appellant for Vae relevant period and coiapensation, if any, shall be payable tiy the appellant-insurer. The appellant-insurer took speafic defence that at (he time of accident, the dnver of fhe Jeep - respondeat No. 2 did not have valid and effecdve driving licence, the vehtele was being driven in breach of policy condition and, fherefore, ffae appellaat may not be held liable for any compensaticm. The Tribunal passed fhe impugnedj"award wifh a finding that the accidrait occurred due to rash and negligent drivmg by the respondent No. 2 as a result of which, the claunant sustained gnevous injuries and became disabled and fhe vehicte was not being dnven in the hreach of policy condition and (he insurance company is also liable to satisfy the award. Leamed counsel for the appellant subinitted that though the driver and the owner in para 8 of their j<Mnt repty have aven-ed fhat the respondent No. 2 was having walid aiid effective dnvii^ Hcence and the vehicle was bemg plied in accordance with the conditions of the pennit, but no evidence was addiiced tn this regard and even fhe insurance policy was not produced. The claimants have ffled the chai^e sheet, the F.I.R. and otha- documents of the criminal ease agamst respondent No, 2 and proved the same and from perusal of the cheu^e Aeet, it wouM be evident that fhe respondent No. 2 was prosecuted for fhe above offence iinder Sections 279, 337 and 338 and also under Sections 3 read with Section 181 of fhe Motor Vehides Act, 1988 as the respoadent No. 2 did not possess valhl and efiTective drivixig Ucence on fhe date of accident. It is further conteiided that the appeBant had fiiled an appMcadon on 26-9-2005 before 3<-. 3 y !^ the 'mbunal under Qrder 11 Rule 14 of the Code of Civfl Proeediire prayii^ for a direction to the respondents No. 2 aad 3 to produce origmal drivii^ licence ofrespondent No. 2. The non- applicant did not file reply to this applicant, however the application was dlsposed of by the Tribunal with an observation that no directioii, ss prayed for, is necessary as it is the responsibility of tfae parties to file documents in their possession. He further submitted that fhe appeUant examuied ShaiIendiFa Kumar, Branch Manager as their witaess who has categprically stated that the drwer of the vehide did not have valid and eEfective drivmg Ucence at the time of acddent, aiid therefore, the msurer was not Hable for satasfying the award, however in the cross-examlnation, no suggestion was gwen on behalf of the driver and fhe owner of the vehicle that the driver ppssessed valid and effective drivfa^ licence. HOWCVCT, the objection of fhe appellant in this regard has been rejected by tihe Tribunal with an observatlon that the onus to establish that ths driver did not possess valid driving licence is on fhe Insurance Company and the Insurance Compaiy has not dischai^ed fhis onus by exammn^ any employee of fhe Regional Transport Ofiice to establish that the driver did not have driving Ifcence. Relianee is placed oa the dedsion in the matter of Natttmal tosarance Co. Ltd. -v- SwafMi Sliudi aad othw reported (2004| 3 SCX; 297. The respondeats were dufy served. The respondents No. 1 and 3 were represented however, none appears for tfae respondeiits when fhe inatter was called out. I have heard leamed coimsel for the appellant The only ground ui^ed by fhe appellant 1s that the driver of the offeading vetaicle - respondent No.2 did iiot have valid and effective driving liceace at fhe time of accidenfc This negative onus has been dischai^ged by fhe Insiirance Company as the appellaat taas pleaded ia its repty that the driver has no ^ •-¥> '^1 ^ :^fl. '^ valid aad effectxve licenoe. The documents ffled by tbe claimant being (he charge sheet, seizure memo and ofher dociuneats of the criminal case a^inst the respondent No. 2 categoricalfy show fhat tfae respondents did not piroduce the licence during mvesti^ition and, therefore, apart fi'om ofher ofiences, respondent No. 2 was also prosecuted for offence under Section 3 read with Secdon 181 of the Motor Vehicles Act, 1988 i.e. driving the vehide without having valid and efiTecdve driymg licence. He also inoved an application before the Tribunal for a directipn to fhe owner and driver to produce the original drivir^ licence. They did not fite reply to'fhis application and also did not produce the licence after filing of this application. However this application was rejected ty the Tribunal with an observation that it is for fhe parties to ffle docuxiients in support of their pleas. It was also pointed out that the witness exanained on behalfofthe msurer has stated on oath that ttae respondent No. 2 did not have vaMd and efiectfve driving licence. He was cross-exainiaed by respondents No. 2 and 3, however, Bto suggestion was given to fhis witness fhat the driver was having licence. Unda- fhese circuiastances, the insurer has dischai^ed the primary onus on it that the driver of the offending vehicle did not have valid and effective driviiig licence. In the case of Swaran Sinali (supra), in pars^raphs 69 and 70, it has been held fhat:- "69. The propostfion oftaw is no longer res integra that the person who aSeges breach nmist prove the same. The insumnoe company is, thus, requa'ed to establish the scad &reach by cogent ewdenoe. 6t the event the msurcmce campany fa3s to prove that there has been breadi of conditions ofpdlicy on the pcat ofthe msured, the msurccnce campciny carmot be absdlved ofits liaW.tty. ^v^. 5 70. Apart from. the atoove, we do not mtend to lay daum anythmg further ie. degree ofproofwkich. wauld sctlisjy the aforementianed requxrement inasmuch as the scane would wtdisputdbly depend vpo/n. the facts and circumstances of the eatrfi case. A wii! ateo depend upon tfte tenns ofcxsntract of contract of insurcmce. Each case may pose a dyerent problem wlvch must be resolued having regard to a targe number offactors goveming the case incdudmg conduct of pcvties as regards duty to infonn, correct dxsctosure, suppression, frccud on tfte insurer etc. S unll ateo depend upon fhefact as to who is fhe awner cfffie vefvude and the cxrcumstcawes in whudt the vehsde uias bemg driven by a person haumg no valvl and effective Uoence. No hard-cmd- fast rute can, therefare, be lcad dawn. f in a giuen case there exists siffident matencd to drcav an. adverse inference agaxnst either the msurer ar the inswed, the TrSnindl may do so. 'Hw parties aSlegmg breach must be held to have svcceeded in establishing the breach of oaruStions of the contract of mswanoe, on the pcat of the msurer by discharging its burden of proaf. The 'Mbwud, there camwt be any daubt, must arrive at afmdmg an the bcssis ofthe material avcalable on recards. * H" we examine tfae evidence available on record in fhe l^ht of paragraphs 69 and 70 of the above judgment repnxiuced hereinabove, we have no hesitatkMi in our mtnd that fhe appellant insurer has dischai^ed its primaiy onus to establish that the driver of the vehicle - respondent No. 2 did not have vaUd and effective driving licence. The appeUant has categoricalty pleaded that fhe driver did not have valid and effective driving Hcence and unsuccessfuUy attempted to seek a direction fiwm fhe Tribimal to tfae respondent No. 2 and 3 to produce fhe original driving licence, however no licence was pnxiuced by respondents No. 2 and 3 and even fhoi^i fhe 1^^1^^ t f zr respondent No. 2 and 3 wese contestiiig the claim case before the Tribunal throu^i fheir Advocates. No eridence was led by the respondents to establish that fhey were having valid and effective drlvii^ licence. The appellant also paid process fee for caUmg the respondents No. 2 and 3 to be examined as their witnesses and accordii^ly summons were issued to fhe respondent No. 2 on 9-8-2005 and 12-9-2005, however they did not tum up to depose before fhe Tribuuaal. Even after the efforts inade by the appeUant, the respondents did not either produce the driving licence or entered into the witness box. The driver was prosecuted under Secdon 3 read wtth Secdon 181 of fhe Motor Vehlcle Act, 1988 for driving the vehicle without havir^ valid and effective drivii^ licence. Therefore, the onty uresistibte presuiaption can be drawn that the driver did not have valid and efiTective driving Ucence. In these drcumstances, lookii^ to the ccaiduct of respondents No.2 and 3, adverse iirference ean be drawn (hat they did not haye vaUd and effective drivir^ licence and as such, the insurer has succeeded in establishii^ the breach of policy condition on the part of the insured while dischargir^ its burden ofproof. Thus on the basis of fhe material available on reeord, we are ofthe considered opiiuon fhat adverse infCTence against the insiired can be drawn that he entrusted fhe vehide to the respondent No. 2 who did not possess valid and effeetive driving Ucence at the tiiae of aecident and the msiu-ed has succeeded in establishing Che breach of condition of insurance policy. In para 84 of Swaran Sindi's case (supra), it has been held that the motor vehicle must be driven by a person having valid and effective drjving licence and the owner of fhe motor '^ehicle in toins of Section 5 has a responsihiMty to see that no vehicle is driven except by a person who does satisfy the provisions of Section 3 or 4 of the Act and whwe the driver of the vehicle did not have valid and eflTective driving lioence and the saxne was aBowed consciously to be driven by th®awner of the vehicle by such person, the insurer is entifled to succeed in its defence and avoid liability. In the result, the appeal preferred by the appeUant Insurance CcMnpany is allowed and it is held that fhe appeUant/iasurer is not liable to make payment of compensation and it was the owner who has to make the payment of awarded amount However, it is directed that fhe appellant/insurer shall pay the quantum of compensation fixed by the Tribunal to the respondent No. 1/claiaaant within two months finm today. For the purpose of recovering fhe same from the owner, the msurer shaU not be required to file a suit It may initiate a proceedii^ before the executii^ court ccmcemed as if fhe dispute between the insurer and the owner was the subject-matter of detennination before the Tribunal and titie issue is decided against fhe owner and in favour of (he insurer. No orders as to costs. S^. Dhirendra Mishra Judge