1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.201 OF 2004 M/s. Devshri Real Estate Developers, Dempo House, Campal, Panaji, Goa. …. Appellant V/s 1. The Oriental Insurance Co. Ltd. with office at Govinda Building, Panaji-Goa. 2. Shri Domnic Araujo, residing at Cujira, St. Cruz, Ilhas, Goa. 3. Shri Raul Araujo, resident of Cujira, St. Cruz, Ilhas, Goa. 4. Smt. Elizabeth Claudina Braganza, major, wife of late Shri Antonio Aleixo Braganza, housewife and her daughter, 5. Sevina Bernadette Braganza, major, and her sister. 6. Kum. Smily Eulogia Braganza, major, and her sister. 7. Kum. Sweety Braganza, major, All residing at House No.E-275, Moloca, Merces, Ilhas, Goa. …. Respondents Mr. Sudin Usgaonkar, Advocate for the Appellant. Mr. E. Afonso, Advocate for Respondent No.1. Mr. M.S. Joshi, Advocate for Respondent No.2. Mr. J.P. Mulgaonkar, Advocate for Respondents Nos.4 to 7. 2 CORAM : F.M. REIS, J. DATE : 29th JANUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award dated 27/04/2004, passed by the learned Presiding Officer of the Motor Accident Claims Tribunal, North Goa, Panaji in Claim Petition No.235 of 1994. 2. The Claim Petition came to be filed by the respondents nos.4 to 7 under Section 166 of the Motor Vehicles Act, 1988 claiming a total compensation of Rs.6 lacs on account of the death of late Shri Antonio Aleixo Braganza, who died in the motor vehicle accident. It is their case that on 20/08/1994, at about 13.30 hrs., the said deceased was proceeding from Panaji to Merces on his scooter bearing registration no.GA-01-A-8828 and when he reached near the middle of the highway, the respondent no.2, who was driving the truck bearing registration no.GDS-7087 came from behind the deceased in the same direction in a rash and negligent manner and in a fast speed and dashed against the rear portion of the scooter driven by the deceased. On account of such accident, the deceased fell on the ground and suffered haemorrhage and shock, as a result of which he expired. 3 3. The case of the respondent no.2 is that one Raul Araujo, the respondent no.3, herein, who is his brother was driving the truck and that the said truck was being driven by him at a slow speed and that the respondent no.2 was sitting on the left side seat of the driver's cabin of the truck and when the truck reached the Panaji- Bambolim by-pass highway, one Kadamba bus was overtaking the truck and a Maruti vehicle came from the opposite direction, which was the cause of the accident. 4. The appellants have filed their written statement and denied that their vehicle was driven by respondent no.2 at a fast speed in a rash and negligent manner. The respondent no.1 filed their written statement and claimed that there was a collusion between respondents nos.4 to 7 and the respondent no.3, and claimed that the appellants had given a false statement that the respondent no.3 was driving the vehicle though respondent no.2 was charge sheeted by the police. It is further their case that the respondent no.1 is to be discharged from the proceedings as they are not liable to pay any compensation on account of the false information given by the appellants and on account of the fact that there was breach of the conditions of the policy issued to the appellants by respondent 4 no.1. The case of respondent no.3 is that the respondent no.2 was acquitted from the criminal case and that he was driving the truck bearing no.GDS-7087 at a slow speed and the respondent no.2 who is his brother was sitting in the cabin on the left hand side of the cabin seat. He, accordingly, prayed that petition deserves to be rejected. 5. The learned Tribunal after recording the evidence and hearing the parties, partly allowed the claim petition against the appellants and respondents nos.1 & 2 and dismissed the petition against the respondent no.3. The said respondents were directed to pay a sum of Rs.4,23,224/- with interest at the rate of 9% per annum on the sum of Rs.3,68,344/- from the date of filing of the claim petition up to the actual payment. The respondent no.1, herein, was given liberty to recover the amount of the compensation from the appellants. Being aggrieved by the said direction to recover the amount from the appellants, the present appeal has been preferred by the said appellants. 6. Shri Sudin Usgaonkar, the learned Counsel appearing for the appellants has submitted that there is no evidence on record to establish that the respondent no.2 was driving the vehicle. He 5 pointed out that the respondent no.3 himself has admitted in the written statement that he was the actual driver of the truck. The learned Counsel took me through the evidence on record and pointed out that in the statement of oath before the Tribunal, the respondent no.3 had admitted that he was driving the vehicle while respondent no.2 had stated that he was sitting on the cleaner's side. The learned Counsel further submitted that even though the respondent no.1 was not duly licenced to drive a truck on the relevant day, nevertheless, as the respondent no.3 was holding a licence the respondent no.1 cannot be exonerated from effecting the payment of the compensation. The learned Counsel further submitted that the Tribunal has erroneously issued a direction to recover the amounts from the appellants as the respondent no.3 was the actual driver of the truck belonging to the appellants. The learned Counsel further submitted that there was ample evidence on record to establish that the appellant no.3 was the actual driver of the vehicle. The learned Counsel further submitted that there is no evidence adduced by respondent no.1 to establish any breach of the policy as alleged by them. The learned Counsel in support of his submissions has relied upon the judgment of the Apex Court reported in AIR 2004 SC 1531 in the case of National Insurance Co. Ltd. V/s. Swaran Singh and Others. He has also relied upon 6 the judgment of the Apex Court reported in 1985 (2) SCC 574 in the case of Narcinva V. Kamat & Anr. V/s. Alfredo Antonio Doe Martins & Ors., 1996 (5) SCC 21 in the case of Sohan Lal Passi V/s. P. Sesh Reddy & Ors. and 1987 (2) SCC 654 in the case of Skandia Insurance Co. Ltd. V/s. Kokilaben Chandravadan & Ors. 7. On the other hand, Shri Afonso the learned Counsel appearing for the respondent no.1 has supported the impugned judgment. The learned Counsel pointed out that from the evidence on record it has been clearly established that respondent no.2 was driving the vehicle at the time of the accident. Learned Counsel further submitted that respondent no.2 did not have an effective driving licence at the time of accident and, as such, respondent no.1 is exonerated from effecting payment of compensation in view of the breach of the terms of the policy committed by the appellants. Learned Counsel further submitted that as the respondent no.2 did not have an effective driving licence, false case is sought to be made out that respondent no.3 was driving the vehicle when there is no evidence on record to establish that the respondent no.3 was ever engaged by the appellants to drive the truck. The learned Counsel further took me through the evidence 7 on record and pointed out on the basis of such evidence that the learned Tribunal was justified to come to the conclusion that the respondent no.2 was driving the vehicle. The learned Counsel further submitted that the appellant did not even enter into the witness box to show as to who was the actual driver and, as such, the question of the appellants now contending that respondent no.3 was the driver of the vehicle would not arise. The learned Counsel submitted that the respondents nos.2 & 3 cannot be believed in view of the apparent false statement made in their depositions and, as such, once the accident is admitted and the ownership of the truck is not disputed, it was incumbent upon the appellants to establish by cogent evidence or disclose who was the actual driver. He further submitted that as the appellants failed to establish such aspect, the question of appellant now contending that respondent no.3 was the actual driver would not arise. In support of his submissions, the learned Counsel has relied upon the judgment reported in 2008 (17) SCC 208 in the case of Sardari & Ors. V/s. Sushil Kumar & Ors., 2004 (3) SCC 343 in the case of Malla Prakasarao V/s. Malla Janaki & Ors., 2007 (10) SCC 650 in the case of Ishwar Chandra & Ors. V/s. Oriental Insurance Co. Ltd. & Ors., and 2008 (12) SCC 701 in the case of National Insurance Company Limited V/s. Vudhyadhar Mahariwala & Ors. 8 8. Shri M.S. Joshi, learned Counsel appearing for respondent no.2 has pointed out that from the material on record it is conclusively established that respondent no.2 was not at all the driver of the vehicle at the relevant time. He took me through the evidence on record and pointed out that respondent no.1 has failed to adduce any evidence to the effect that there was any breach of the terms of the policy as alleged by them. He further pointed out that as respondent no.2 was not driving the vehicle it becomes irrelevant as to whether the driver had an effective driving lecence, as it is not disputed that respondent no.3 was duly licenced to drive the truck at the relevant time. The learned Counsel supported the submissions of the learned Counsel appearing for the appellants. 9. Having heard the learned Counsel and on perusal of the records, I find that the main contentions raised in the present appeal are twofold. (i) Whether the truck was being driven by the respondent no.2 or by the respondent no.3. (ii) Whether the respondent no.1 has established that there was a breach of the terms of policy which would entitle them to disown the claim put forward by the claimants. 9 10. On perusal of the records, I find that the claimants/respondents nos.4 to 7 in their claim petition have specifically averred that the truck was being driven by the respondent no.2. The written statement filed by the appellants discloses that there was no specific denial on that aspect. In fact, the appellants, who are the owners of the said truck did not take any categorical and specific stand as to who was driving the vehicle at the time of the accident. As such, the said facts were not traversed by the appellants in the written statement. Admissions are of many kinds : this may be considered as being on the basis as actual if they are in the pleadings or in answer to the interrogatories or implied from the pleadings by non-traversal. On perusal of the written statement at para 10, the contents at para 23 of the claim petition to the effect that respondent no.2 was driving the vehicle has not been specifically denied. It can, as such, be safely assumed that the respondent no.2 was actually driving the vehicle at the relevant time and, the question of considering that respondent no.3 was driving the vehicle would not arise. There is no dispute that respondent no.2 was charge sheeted on account of the accident. The investigation officer was also examined in the proceedings and on perusal of his statement before the Tribunal he has stated that from their investigations, the respondent no.2 was driving the 10 vehicle. No doubt in the criminal proceedings initiated by the police, the respondent no.2 was acquitted as the prosecution had failed to establish that the respondent no.2 was in fact driving the vehicle. But, however, the fact remains that in the cross- examination of the said Investigating Officer there were no motives imputed to him for falsely implicating respondent no.2 in the accident. Apart from that the respondent no.3 has stated in his examination that he had reported the accident to the Ribander police station after the accident. The evidence on record establishes that the said statement on the part of the respondent no.3 is an incorrect statement. In fact, no such allegation was put forward to the Investigating Officer at the time of his cross- examination before the learned Tribunal. This aspect assumes significance in view of the fact that the Motor Vehicles Act, 1988 provides that the driver of the vehicle is bound to report any such accident to the concerned police station. 11. The respondent no.3 cannot be believed as he even went to the extent of feigning ignorance of the charge-sheet filed against the respondent No.2 though it is an admitted fact that respondent No.2 is the brother of respondent No.3. All these circumstances disclose that respondent No.3 cannot be believed in his statement 11 that he was driving the vehicle at the relevant time. The owners who are the appellants herein have not specifically denied in the written statement the fact that respondent No.2 was driving the vehicle at the relevant time. This admission on the part of the appellants in fact becomes material to decide the fact as to whether respondent No.2 was driving the vehicle. The contention of the learned Counsel for the appellants to the effect that even assuming that respondent No.2 was driving the vehicle, respondent No.1 is not entitled to disown the payment of the liability, is a matter which has to be considered whilst deciding the next point of determination. Considering that the accident has not been disputed and the involvement of the vehicle has not been disputed, it was incumbent upon the appellants to take a definite stand and state as to who was his actual driver of the vehicle at the relevant time. The appellants also failed to enter the witness box before the learned Tribunal to take a definite stand. As the appellants have failed to disclose such material, adverse inference would have to be drawn on that count against the appellants. 12. The Apex Court in the case reported in 2011 (1) SCC 388 in the case of Saroj & Ors. V/s. Het Lal & Ors. in similar circumstances on the basis of the admission of the owner about the 12 involvement of his vehicle in the accident and that a driver was driving the vehicle at the relevant time held that there can be no occasion to hold otherwise on the basis of the version of the driver. The learned Presiding Officer has rightly appreciated the evidence on record and come to the conclusion that respondent no.2 was driving the vehicle. Considering the facts of the case, it appears that respondent No.3 was trying to help respondent No.2 who is his brother to riggle out from his responsibility from paying the compensation to the claimants. 13. The evidence of the witnesses examined by the claimants in fact do not support the contention of the appellants that respondent No.2 was not driving the vehicle. In fact, on minute examination of the deposition of the witnesses, the fact remains considering the circumstances stated therein, that respondent No.2 was driving the vehicle at the time of the accident. As such, the Tribunal was justified to come to the conclusion that respondent No.2 was driving the vehicle at the time of the accident. I find no infirmity in the findings and as such, the first point of determination is answered. 14. Dealing with the next point for determination, Shri E. 13 Afonso, the learned Counsel for respondent No.1 has submitted that in view of the fact that respondent No.2 did not have an effective driving licence at the relevant time, respondent No.1 was entitled to disown the payment of the compensation in view of the breach of a specific term of the policy. On perusal of the licence which has been produced on record, I find that some material pages are missing. The original driving licence has not been produced, apart from that the driving licence was produced across the Bar without the parties being given an opportunity to cross-examine the witnesses. Considering the rival contentions as to whether there was any effective driving licence or not and whether that by itself would entitle respondent No.1 to repudiate the policy on account of a specific breach of the term of the policy, I find that the Tribunal has not adverted to this aspect in accordance with the well settled principles. The Apex Court in the case reported in 2005(5) SCC 789 in the case of National Insurance Corpn. Ltd. V/s. Kanti Devi, at paras 9, 10 and 11 held thus: “9. Obviously, defence can be raised by the insurer about the licence being fake. By analogy, the insurer can also take a defence that the driver did not have the requisite driving licence to drive a particular type of vehicle. Such defence can be raised and it will be for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. The effect of the evidence in this regard has to be considered by 14 the Tribunal concerned. 10. In the instant case, the High Court did not go into the relevant questions at all and relying on Lehru case held that the insurer has to pay the amount and recover from the insured. It has to be noted that in Swaran Singh case the earlier decision in Lehru case was noted. In para 108 of the judgment it was noted as follows: “108. Although, as noticed herein before, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstances of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent.” 11. The essence of Lehru case was delineated in paras 92 and 100 as follows: “92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehru case the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. We would be dealing in some detail with this aspect of the matter a little later. 100. This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a 15 question which would arise for consideration in each individual case.” 15. Considering the said Judgment of the Apex Court, I find that the Tribunal has not scrutinized the evidence on record to consider whether all the aspects dealt with as enumerated above have been considered whilst passing a direction that the amounts are to be paid by respondent No.1 and thereafter recovered from the appellants. This aspect will have to be decided by the learned Tribunal afresh after giving both the parties an opportunity to be heard in accordance with law. 16. Shri Afonso, learned Counsel for respondent No.1 has pointed out that he desires to produce evidence to substantiate his contention that respondent No.2 did not possess an effective driving licence on record. Shri Usgaonkar, learned Counsel for the appellants points out that he also desires to produce further evidence in support of his contention that there was no breach of the terms of policy which would entitle respondent No.1, to be absolved from effecting the payment of compensation to the respondents nos.4 to 7. Liberty is given to both the parties to file an application to that effect and in case any such application is filed, the Tribunal shall decide the application on its own merits 16 after giving both the parties an opportunity to be heard in accordance with law. The second point for determination is answered accordingly. 17. In view of the above, I pass the following order:- O R D E R (i) The appeal is partly allowed. (ii) The Judgment and Award dated 27/04/2004 with regard to issues Nos.1 to 6 is confirmed. Findings on issue No.7 are quashed and set aside. (iii) The Tribunal is directed to decide issue No.7 afresh after giving both the parties an opportunity of being heard in the light of the observations made herein above in accordance with law. (iv) The appeal stands disposed of with no orders as to costs. (v) The parties are directed to appear before the Tribunal on 18/04/2011 at 10.00 a.m. F.M. REIS, J. NH/-