HIGI-lCOURfOFCHHA'TnSGXRHATBlLASRUR SB:Hpnt)leShriJusticeR.L.Jhanwar, M. A. (O No.258 of 2009 APPELLANT (Insurer) RESRONDENTS i Th& Oriental In^^^ Limited. Versus : Dauwa Ram Dewangan and pthers. Q_KD£S''':,.'[•'•':••.' \::^ ForPronouncementWOMer^^^^^^^^^^^^ Sd/- R.£.Jhanwar Judge "SEUS HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L, Jhanwar, IVI.A.(C)No. 238 of 2009 APPELLANT (Insurer) RESPONDENTS Claimant DriverofVehicle Onwer of vehicle '•;T /-K;~ f~. ;^'3j The Oriental Insurance Company Limited, through the Divisional Manager, Oriental Insurance Co. Malviya Nagar Road, Durg (C.G.) Versus 1. Dauwa Ram Dewangan, S/o Itwari D^wangan, aged 25 years, R/o Sahid 'Veernarayan Singh Nagar, Power House, Bhilai, Tah. & District Durg C.G. 2. Tekram S/o Mannu Dheemar, aged 28 years, Occupation Driver R/o Dheemar Colony, Mahamaipara, Raipur Purani Basti Raipur(C.G.) 3. Prasann Jain, S/o J.L Jain, M/s Jain Ispat, M.G. Road, Raipur(C.G.)' APPEAL UNDERSECTION 173 OF THE MOTOR VEHICLES ACT Appearance: Shri Abhishek Sinha with Shri Ghanshyam Patel, counsel for the appellant / insurer. Shri R.K.Gomasta, counselfqrrespondentNo.1. ^ None for respondents No.2 &3. ' * ORDER (Passed om.5..01.2011) This is an appeal by the insurer i.e. the Oriental Insurance Company Limited against theorder dated 24.01.2008 passed by the 1st Additional Motor Accidents Claims Tribunal Durg, in :Claim Case No.84/2004 whereby the learned Claims Tribunal has awarded Rs.2,26,790/- as total compensation to the respondents No.3 to 7/claimants, in an injurycase. 2. As against the cbmperisation of Rs.24,25,000/- claimed by respondent No.l/claimant by filing claim petition under Section 166 of the Motor Vehicles Act (for short 'the Act 6f 1988') for the injuries sustained by him in the motor accident when he was hit by Maruti Van bearing No. M.P.23 L.A. 1830 (for short'the offending vehicle') on 15.09.2002, being ^ ^•^^: -y .-• i<i. JA^a.-.Sa, i **«"'../ ""..^t Kt^S'Zfe- driven by its driver in a rash and negligent manner, owned by respondent No.3 and insured by the appellant, the Tribunal, on close scrutiny of the evidence led by the parties and submissions made by respective parties, awarded compensation of Rs.2,26,790/- with interest at 6% per annum from the date of filing of claim petition till its realization. The Tribunal further directed the respondents to pay compensation amount jointly and severally. It is this order, which is under challenge by the Tribunal. 3. Shri Abhishek Sinha with Shri Ghanshyam Patel, learned counsel for the appellant vehemently argued that before the Tribunal the owner \}SL/VLC LL^- and driver of the offending did not produce any valid and effective driving licence and have also becd'frie ex parte and in that situation, the insurer had no chance to ask them under notice to produce valid and effective driving licence. Drawing attention to the documents filed by the claimant / respondent No.1 relating to Criminal Case No. 711/2006 Ex.P.1, F.I.R. Ex.P.2, Map Ex.P.3, Seizure of the offending vehicle Ex.P.4, Seizure of R.C.book Ex.P.5, Bed head ticket Ex.P.6, medical examination report Ex.P.7, Record of Hospital Ex.P.8 and other documents relating to treatment, it was argued by him that after notice respondent No.2 Tekram had filed his written statement wherein although he admitted that respondent No.3 is the owner and he is the driver but denied the accident. He further submitted that since the insurer in its written statement took a plea that charge sheet was also filed against the driver / respondent No.2 under Sections 279, 337 and 338 of the I.P.C. and Section 3 read with Section 181 of the Act of 1988, therefore, it is clear that at the time of accident, driver / respondent No.2 was not holding valid and effective driving licence and if he would have such driving licence, then certainly he would have produced the same before the police or before the Claims Tribunal or even before this Court, which shows that driver was not holding any valid driving licence. He further argued that he was unable to lead its case properiy because the driver and owner have become ex parte and did not produce any licence and despite that it was able to discharge its duty that driver was not holding any valid driving licence. More over, in charge sheet, which was filed before the learned Magistrate, Section 3 read with Section 181 ofthe M.V.Actwas also inserted including Section 279, 337 and 338 of the I.P.C. and the documents produced by the daimant have not been rebutted by the owner and driver which also 3 shows that the driver and owner could not prove their case. Thus, it is clear that the driver had no valid and effective driving licence at the time of accident. Once part of contents are already admitted in evidence by the Claimant, the insurer need npt prove its burden to prove by adducing evidence separately. He placed reliance in the matter of Baijnath & Another v. Chandrika Prasad Sahu & Others, 2008 (1) C.G.L.J. 307 (DB) and Oriental Insurance Co. Ltd. v. Premlata Shukla & Ors., 2007 AIRSCW3591. 4. On the other hand, Shri R.K.Gomasta, learned counsel for respondent No.1 argued that burden is on the insurance company to prove its case. The insurer should have issued notice to the driver to produce the driving licence when he appeared before the Tribunal by filing Written statement but it was nbt done. Therefore, the insurdnce company has not been able to discharge its burden that driver was not holding any valid licence and the insurance company cannot take advantage of the documents produced by the claimant. He placed reliance in the matter of National Insurance Co. Ltd. v. Yogesh and others, 2010 (1) ACCD 531 (Raj). 5. I have heard learned'couhsel for the parties and have perused the record of the Claims Tribunal. ' '• 6. In this case, the only question that remains to be ponsidered is whether or not the driver / respondentNo.2 was holding a valid and effective driving licence at the time ofaGcident. A perusal of Ex.P,2 F.1.R. would clearly shows that one criminal case bearing No. 711/2006 for the offence punishable under section 279, 337 and 338 of the I.P.C. and Section 3 read with Section 181 of the Act of 1988. It is apparently clear .that before the Tribunal respondent No.1 made his appearance and had also filed its written statement in which he did neither admit that he was holding a validand effective drw'ihg licerice atthe time of accidenf nordid file any driving licence. If he would have such driving licence at the time of accident, then certainly he would have filed the same. After filing of written statement, he beeame ex parte which also shows that driver was J. [- not holding valid driving licence. According to the Act of 1988, sub-clause (C) Qf Section 134 of the Act of 1988 is an enabling provision, which casts ddty upon the owner and driver of the vehicle to give information to the •a^ insurance company and also to police about the licence. In the present case, driver / respondent No.2 - Tekram made his appearance before the Tribunal and had also filed its written statement; however, he did not produce his driving licence. Therefore, ari adverse inference can easily drawn against the driver that despite knowing the fact that charge sheet has been filed under Section 279, 337 and 338 ofthe I.P.C. and Section 3 read with Section 181 of the Act of1988, he did not produce his driving licence. 7. Section 3 read with Section181 ofthe Act of 1988 reads as under: "3. Necessity for driving licence.—(1)No person shall driye a motor vehicle in any public place unless he holds an effective drivinglicence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle(other than a motor eab or motor cycle) hired for his own use or rented under any scheme made undersub-section (2) of section 75) '"' ""unless tti&driving'ltcgncespgeifteally'erititles hTm sbtoao. 1 ' 181. Driving vehicles in contravention of section.3 or section 4:-Whoever drives a motor vehicle in contravention of section 3 or section 4 shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both." 8. Having thus'considered the facts andcircumstances; the fact that driver filed its written statement before the Tribunal wherein he didnot state that he was holding a valid and effective licence on the date accident and the fact that he was also charge sheeted and also the fact that after filing of written statement he became ex parte before the Tribunal, 1 amof the viewthat duty'is'Gast"6rt'th&"6wner't6proveas'to whythe driver did not produce his driving licence upon being noticed bythe Tribunal or after Jiling of written statement. Thus, since the owner / respondent No.3 failed to prove his case, therefore, 1 am of the considered view liability to pay compensation awarded by the Tribunal, should be paid by the owner to theclaimant / respondent No.1. ''';•/' '1~11;' :'!-;';?:'fp'7F''f<hl; r; : 1 'i'i' '•• 'l ' ' ;; ! ' 9. So far as the contention made by the learned counsel for respondent No.1 that the burden is on the insurance company to prove its case by adducing evidence or producing necessary documents, is concerned, this Court while dealing with the point in Baijnafth & Another v;-C/»ari(/riffaPrasadTSahu'iS"Oif/ier(supra>heldas under ' "In the circumstances, even if evidence has not been' adduced by the Insurance Company, in cross-examination of the claimant's witnesses defence counsel has been able to bring on record that the tractor trolley in question was being used on hire basis. Hence, we are of the considered opinion that on the basis of the material available on record, as has been held by the Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and others, 2004 AIR SCW 663, the Insurance Company has been able to discharge its burden regarding breach of the contract of insurance. In order to discharge burden it is not necessary that burden can be discharged only by adducing evidence by the party. Burden can be discharged based on any material on record, documents available on record or by bringing facts on record in cross-examination of witnesses of the opposite party. Sufficient material is available on record in cross-examination of the claimants' witnesses and also the evidence of the driver of the tractor." 10. Relying upon the above citation, it is held that the appellant / insurer has been able to discharge its duty by proving that at the time of accident the driver was not holding a valid and effective licence and thereby committed breach of contract of insurance. 11. ]n view of what has been stated above, the appeal is allowed. The appellant / insurer is exonerated from its liability to pay compensation amount awarded by the Tribunal. The liability to pay compensation and interest awarded by the Tribunal rests with respondent No.3 / owner. The appellant / insurer may initiate proceedings for recovery of compensation, if any paid by it from owner. R.£.Jhanwar Judge