1 FA.458/1997 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 458 OF 1997 The New India Assurance Co. Limited) ...Appellant. V/s. 1] Smt. Vanchabai Keshav Bagav ) 2] Santosh Keshav Bagav, ) 3] Mr. Subhedar Savala Gajge ) 4] Mr. Rohidas Subhedar Gajge ) ...Respondents. ----- Mr. M.G. Barve, for the Appellant. Mr.P.J. Shinde, for Respondent No.1 and 2. ------ CORAM : A.S. OKA, J. DATED : 6 th OCTOBER, 2010. JUDGMENT: 1] Heard the learned counsel for the appellant and learned counsel for respondent nos.1 and 2. 2] The challenge in this First Appeal is to the judgment and award dated 20th January 1997 passed by the learned Member of Motor Accident Claims Tribunal on the claim petition filed by the first and second respondents. The claim petition was filed claiming compensation on account of death of one Keshav Bagav in a motor accident. 2 FA.458/1997 3] The third respondent herein is the owner of the jeep which was found involved in the accident. The fourth respondent is the driver who was driving the jeep at the relevant time. 4] By the impugned judgment and award, the Tribunal granted compensation of Rupees one lac with interest. The Tribunal held that the appellant failed to establish its defence that fourth respondent was not possessing a valid driving licence. Therefore, the Tribunal held that the appellant was liable to identify the third respondent-insurered. 5] The learned counsel for the appellant submitted that a specific contention was raised in the written statement that the fourth respondent was not possessing a driving licence and that the fourth respondents being son of third respondent, the third respondent was aware that the fourth respondent was not possessing a driving licence. He submitted that notice was issued to the third and fourth respondent to produce the driving licence. He pointed out that in fact witness summons was issued to the fourth respondent for deposing before the Tribunal and for production of driving licence and notwithstanding the service of writ of summons, the fourth respondent did not appear before the Tribunal. He pointed out that 3 FA.458/1997 even summons was issued to the Regional Transport Officer, Satara for production of licence, if any, issued to the fourth respondent but no document was produced. He, therefore, submits that the appellant had discharged the burden of proving breach of terms and conditions of the Policy. 6] The learned counsel appearing for respondent nos.1 and 2 submits that no evidence was adduced by the appellant for discharging the burden. He submitted that only on the basis of allegations contained in the charge-sheet it cannot be said that the fourth respondent was not possessing a valid driving licence. He submitted that the concerned Investigating Officer has not been examined by the appellant. He submitted that no Officer of the appellant entered the witness box for discharging burden and hence the finding of the Tribunal on this aspect cannot be faulted with. 7] I have carefully considered the submissions. In the written statement filed by the appellant, by way of amendment, paragraph 7 was added raising specific contention that the fourth respondent was not holding a proper and valid driving licence for driving the offending vehicle. It is contended that the said fact was clearly within the knowledge of the third respondent and after having knowledge of 4 FA.458/1997 the said fact. he entrusted vehicle to the fourth respondent to drive the same. 8] Perusal of the record show that Mr. L.B. Kadam, Advocate has filed Vakalantnama for the third and fourth respondents. A specific notice to produce documents under Order XII Rule 8 of the Code of Civil Procedure, 1908 was served by the Advocate for the appellant to Shri L.B. Kadam, Advocate. Office copy of the said notice has been produced at Exhibit-48. The postal receipt produced at Exhibit-49 shows that the notice was sent to the said Advocate as well as to the fourth respondent by registered post AD. The acknowledgment of the Advocate is at Exhibit-50. 9] The reliance is placed on charge-sheet at Exhibit-51 filed against the fourth respondent where one of the offences alleged is that the fourth respondent was not possessing a valid driving licence 10] Perusal of the record shows that an application was made at Exhibit-43 for issuing witness summons to the fourth respondent for deposing before the Court as well as for production of driving licence possessed by him, if any. The said application was allowed. Though two attempts were made, the summons could not be served to the fourth respondent. A fresh summons were issued as per the order 5 FA.458/1997 below Exhibit-36. The summons was served on 16the August 1996. The report of the Court bailiff is on record. The summons was made returnable on 31st August, 1996. The fourth respondent did not appear before the Court pursuant to said witness summons. 11] An application was made by the appellant at Exhibit-38 for issuance of witness summons to the Regional Transport Office for production of details of driving licence, if any, granted to the fourth respondent. The said witness summons was duly served to the concerned Office. A letter was received from the Dy.Regional Transport Officer at Exhibit-40 stating that unless driving licence number was communicated, it was not possible to produce the record. 12] Notwithstanding the service of notice to produce documents and service of witness summons, the fourth respondent did not produce the driving licence. The aforesaid factual aspects show that all possible steps were taken by the appellant for proving that there was no driving licence held by the fourth respondent. By taking aforesaid steps, the appellant has discharged its burden of proving the absence of driving licence. For discharging the burden, it was not necessary for the appellant to examine its officer as the officer may not have any personal knowledge. The documents such as notice to 6 FA.458/1997 produce the documents at Exhibit-48, the postal receipts at Exhibit-49 and acknowledgment at Exhibit-50 have been marked as exhibits with the consent of the Advocate for the respondent nos.1 and 2. The charge-sheet at Exhibit-51 is also admitted evidence by consent of respondent nos.1 and 2. These important aspects have been overlooked by the learned Member of Motor Accident Claims Tribunal. Therefore, in this case the burden of proving breach of terms and conditions of the policy was discharged by the appellant and therefore, the liability ought not to have been fastened on the appellant. 13] To that extent the impugned judgment and award will have to be modified. I pass following order:- i) The impugned judgment and award is modified and the claim petition under No.226 of 1991 stands dismissed as against the appellant. ii) Rest of the award made against respondent nos.3 and 4 is, however, maintained. There is no order as to costs. JUDGE 7 FA.458/1997