IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 412 of 2005 Reserved on: 27th March, 2009 Date of Decision: 30th April, 2009 United India Insurance Company Limited Appellant Versus Smt. Shushma Devi and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Harish Behl, Advocate. For the respondent: Ms. Ambika Kotwal, vice counsel for respondents No.1 to 4. Mr.Sunil Mohan Goel, Advocate, for respondent No.7. Sanjay Karol, J. The present appeal has been filed by the Insurer - United India Insurance Company assailing the award dated 8.7.2005 passed by Motor Accident Claims Tribunal, Kullu, in Claim Petition No.51-2004, titled as Smt. Shushma Devi and others vs. Gopi Chand and others. The facts giving rise to the filing of the present appeal are as under:- Shri Sunit Singh, was driving vehicle (Truck) No.HP-66- 1771 to Kullu and somewhere near a place called Sharni, H.P. the tyre of the vehicle got punctured. He loaded two tyres of his vehicle on Truck No. Whether the reporters of Local Papers are allowed to see the Judgment? 2 HP-34-4632 and travelled in it to the nearest available place to get the same repaired. However, near Village Hathithan, on the Bhuntar Manikaran road, the said vehicle met with an accident near Village Hathithan, in which Shri Sunit Singh died. He was employed as a driver by Shri Mahesh Kumar on a monthly salary of Rs.6000/- per month. His legal heirs i.e. his widow, sons and mother filed a petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as the Act) claiming compensation of Rs. 8 lacs. The owner and the driver of the truck while opposing the claim petition pleaded liability of the insurer as the vehicle stood insured with them. The Insurer filed reply, inter alia pleading that the petition was filed in collusion with the owner and the driver of the vehicle; the driver was not possessing a valid and effective driving licence and that the vehicle was being driven in contravention of the Act. In a passing reference, it was denied that the deceased was not travelling in the vehicle as owner of the goods. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether Sunit Singh died due to rash and negligent driving of truck No.HP-34-4632 by respondent No.2 as driver, as alleged? OPP 2. In case issue-1 is proved in affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP. 3. Whether the petitioners are legal representatives of deceased Sunit Singh? OPP. 3 4. Whether the vehicle in question was insured with respondent-3? OPR-1 and 2. 5. Whether respondent-2 was not having effective and valid driving licence at the time of accident? OPR-3 Opportunity to lead evidence was afforded to the parties. Appreciating the material on record (oral and documentary), the Tribunal came to the conclusion that deceased Shri Sunit Singh, who was travelling in the vehicle as owner of the goods, died due to rash and negligent driving of vehicle No.HP-34-4632, by its driver Shri Tej Ram and the claimants, who were the legal representatives of the deceased, were entitled to compensation of Rs.5,96,000/-. The income of the deceased being Rs.4500/- per month, for the purpose of dependency was taken to be Rs.3000/- per month and taking the age of widow to be 35 years and that of the deceased to be 40 years, by applying a multiplier of ‘16’, a total sum of Rs.5,76,000/- as loss of income + Rs.20,000/- as conventional charges were awarded. The vehicle in question was insured in terms of insurance policy (Ext.PW-4/A) and the driver was possessed with a valid and effective driving licence (Ext.RW-1/A). While deciding the petition, the Tribunal in para 15 of the award observed as under:- “RW-4 has testified that no premium was charged under the said policy in respect of any passenger. In view of the said fact, it has been argued by the learned counsel for the respondent No.3 that the vehicle in question was admittedly a goods vehicle. The vehicle in question was not insured for carrying passengers. No passenger could have been carried in the said vehicle. Hence, respondent No.3 is not liable to 4 indemnify the owner. The said submission appears to be quite attractive, but the evidence on record is otherwise. It has been pleaded that deceased was travelling in a goods vehicle in question as owner of the goods as he was carrying tyres in the said vehicle. The tyres fall within the definition of goods. The testimonies of PW-1 and PW-4 to this effect could not successfully assailed on behalf of respondent No.3 that the deceased was travelling in the goods vehicle as owner of the goods. In view of the said established fact, respondent No.3 insurance company could not be exonerated from its liability to indemnify the owner of the vehicle in question qua the amount of compensation. In result, issues No.2,3 and 4 are answered accordingly.” Mr. Harish Behl, learned counsel for the Insurer has assailed the award on the ground that the aforesaid findings are not borne out from the record and that the liability could not have been fastened upon the insurer for the reason that the deceased had been travelling as a gratuitous passenger in the truck at the time of the accident. He has referred to and relied upon the decision of the Apex Court in National Insurance Co. Ltd. vs. Cholleti Bharatamma and others, (2008) 1 SCC 423 and High Court of Punjab and Haryana in Satyawan vs. Mahinder Singh and others, 2007 ACJ 1396. Per contra, Mr. Goel, learned counsel for the driver- respondent No.7, has argued that the findings of fact are borne out from the record and in any event the Insurer failed to prove the breach of the terms of the Insurance policy as required by law. In his support, he has referred to and relied upon the decisions of the Apex Court in United India Insurance Co. Ltd. vs. Lehru and others, (2003) 3 SCC 338; National Insurance Co. 5 Ltd. vs. Swaran Singh and others, (2004) 3 SCC 297 as well as this Court in Surender Singh vs. Smt. Jai Manti Devi and others, Latest HLJ 2008 (HP) 1174 and decision in FAO (MVA) No.47 of 2007, decided on 30.5.2008. I have heard the learned counsel for the parties and also perused the record. The challenge is confined to the finding returned in para 15 of the award. In the claim petition, the claimants have pleaded as under:- “10. Was the person in respect of whom the compensation is claimed travelling by the vehicle involved in the accident and if so give the name of the place of starting of journey and destination. Yes the deceased had boarded the above said vehicle No.HP-34-4632 from Sharni to Bhuntar and was carrying his two punctured tyres in the above said vehicle and was travelling in the vehicle as owner of the goods.” “24. Cause of accident with brief description: Sir, (i) That on the fateful day of 7.9.2003 at about 7 A.M. the deceased was driving Truck No.HP-66-1771 and was coming from Village Shat to Bhuntar and when his truck reached at Village Sharni his trucks front tyre was suddenly punctured and his spare tyre was also punctured. In this situation the deceased was waiting for some vehicle to take his punctured tyres to Bhuntar. At about 8 A.M. the truck No. HP-34-4632 came from Naikaran side and the deceased stopped and hired this truck to carry punctured tyres to Bhuntar for their repair and was sitting by the said of the driver of Truck No.HP-34-4632 as owner (ii) That the respondent No.2 was driving the truck No. HP-34- 4632 in a rash and negligent manner and in an excessive speed and when the truck reached at Village Hathithan situated on Bhuntar Manikaran road the respondent No.2 lost his control over the truck and hit/struck his truck with the back side of Trolley of a Tractor which was going ahead. This accident is the result of sheer rash and negligent driving of the truck No.HP-34-4632 by the respondent No.2. In this accident the deceased Sh. Sunit Singh has 6 sustained multiple injuries on his body which resulted in his death. (iii) That the deceased was hale and hearty man of about 40 years of age and was employed as driver in Truck No. HP-66-1771 owned by Sh. Mahesh Kumar son of Sh. Gulab Chand R/o Sharni, P.O. Jalugran, Tehsil and Distt. Kullu and the deceased was getting Rs.6000/- per month as monthly wages from the above said Mahesh Kumar. (iv) That the deceased was the father of the petitioner No.2 to 4 and husband of the petitioner No.1 and the petitioners were solely dependent upon the income of the deceased. On account of untimely death of Sh.Sunit Singh, the petitioners have suffered irreparable loss, mental shock and agony and plight of the petitioners have become miserable as because the petitioner No.2 to 4 have lost their father and petitioner No.1 has lost her life partner and as such the petitioners are entitled to claim a sum of Rs.8,00,000/- (Rupees eight lacs only) as compensation from the respondents. The deceased was the only bread earner in the family of the petitioners and the deceased would have earned much more amount than claimed, in case if he would not have died in the accident.” In response thereto, the owner has stated as under:- “10. Para No.10 needs no reply.” “24.(i to iv) Para 24 (I to iv) of the claim petition is correct to the extent that on 7.9.2003 the respondent No.2 was driving the truck No. HP-34-4632 which met with an accident. It is also correct that deceased Sunit Singh was travelling in the truck as an owner of the goods who died in the same accident. Rest of the contents of this para are wrong hence denied. The accident did not take place due to the rash and negligent driving of respondent No.2. The age, income and occupation of the deceased is also denied. The petitioners are not the legal heirs of deceased Sunit Singh and are not entitled to get the compensation. The amount claimed is highly excessive and exaggerated one.” The driver in his reply has stated as under:- “10. Para No.10 needs no reply.” 7 “24.(i to iv) Para 24 (I to iv) of the claim petition are correct to this extent that on 7.9.2003 the respondent No.2 was driving the truck No. HP-34-4632 which met with an accident. Rest of the contents of this para are wrong hence denied. The accident did not take place due to the rash and negligent driving of respondent No.2. The age, occupation and income of the deceased is also denied. The amount claimed is highly excessive and the petitioners are not entitled for the same. However, it is admitted that the deceased was sitting in the truck as owner of the goods.” The Insurer has pleaded as under:- “Preliminary Objections: “1. That the Vehicle No.HP-34-4632 is specifically denied to be insured with the respondent No.3 for want of particulars of the insurance policy and in case later on the particulars of the insurance policy are furnished, the respondent No.3 reserves its right of filing the supplementary reply.” “2. That in case if the vehicle No.HP-34-4632 is proved to be insured with the respondent No.3 and the petitioner is found to be entitled for any compensation, even in that event to respondent No.3 is not liable to pay any sort of compensation because the driver of vehicle was not possessing the valid and effective driving licence and the owner of the vehicle was also not possessing valid documents, routine permit, token tax, fitness certificate etc. and it was being plied in contravention of the Motor Vehicle Act, and the contract of the insurance policy, if any and as such the claim petition against the respondent No.3 is liable to be dismissed.” On Merits: “10. Para 10 is wrong and hence denied. “24. (i) Para No.24(i) of the petition is wrong and hence denied. It is further submitted that no accident took place on 7.9.2003. It is also denied that Sh.Sunit Singh suffer various 8 multiple grievous injuries and succumbed to his injuries as alleged hence contents of sub para is wrong, not admitted to be correct and denied. (ii) para No.24(ii) The allegation contained in this para are wrong and not submitted to be correct and hence denied. (iii) Para No.24 (iii) the allegation contained in this sub para are wrong and not admitted to be correct and hence denied. It is further submitted that the vehicle No.HP-34-4632 is denied to be insured with the respondent No.3 for want of particulars of insurance policies are furnished. Moreover Driver of the said vehicle was not possessing the valid and effective driving licence and the owner of the vehicle was also not possessing the valid documents, rout permit, token tax, fitness certificate etc. and it was being plied in contravention of the Motor Vehicle Act and contract of the insurance policy. (iv) Para No.24(iv) of the petition is wrong and hence denied. It is specifically denied that the sum of Rs.25,000/- has been spent on the last rites of the deceased.” Importantly, none of the respondents in the claim petition specifically denied the claimants’ assertion that the the deceased had hired the truck to carry the punctured tyres. Importantly, on 11.10.2004 when issues were framed no separate or specific issue about the deceased being a gratuitous passenger was either pressed for by the Insurer or framed by the Tribunal. In fact even a general issue about violation of the terms and conditions of the policy was got framed. The parties led their evidence to prove the issues and the claimants examined Smt. Sushma Devi (PW-1), Dr. Bhupinder Chauhan (PW-2), H.C. Jiya Lal (PW-3) and Shri Mahesh Kumar (PW-4). 9 In rebuttal, the driver and owner examined Shri Inder Singh, (RW-1), Criminal Ahlmad of the Court of Chief Judicial Magistrate, Kullu, and driver of ill-fated truck Shri Tej Raj (RW-2) and Shri Diler Singh (RW- 3). Insurer examined Shri Devi Singh (RW-4), Assistant Administrative Officer, United India Insurance Co., Kullu. For adjudication of the issue involved in the present appeal, statements of PW-4, RW-2 and RW-4, being relevant needs to be examined. PW-4 categorically deposed that on 7.9.2003 the deceased was driving the vehicle to Bhunter and near Sharni, the tyre of his vehicle got punctured. The stepney was already punctured. Hence for getting the tyres repaired, the deceased loaded two tyres on Vehicle No.HP-34-4632 and proceeded towards Bhunter. The deceased was travelling in the vehicle as owner of the goods. On the way, however, the accident took place in which the deceased died. He had employed the deceased at a monthly salary of Rs.6000/-. From the line of cross-examination, it is evident that the Insurer has taken multiple defences. In cross-examination, the witness has denied the suggestion that the deceased was travelling as a Mazdoor on the truck. He denied the suggestion that deceased was drunk. He has further denied that at the time of accident the deceased was not travelling in the vehicle at all. Importantly, there is no cross-examination to the effect that the deceased was travelling as owner of the goods. In Rajinder Pershad (dead) by LRs vs. Smt. Darshana Devi, AIR 2001 SC 3207, relying upon its earlier decision reported in State of 10 U.P. vs. Nahar Singh (dead) (1998) 3 SC 561, the Apex Court held as under:- “…..In the Court of the Rent Controller, the postman was examined as A.W. 2. We have gone through his cross-examination. It was not suggested to him that he was not on duty during the period in question and the endorsement "refused" on the envelope was incorrect. In the absence of cross-examination of the postman on this crucial aspect his statement in the chief-examination has been rightly relied upon. There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U.P. v. Nahar Singh (dead) (1998) 3 SCC 561, a Bench of this Court (to which I was a party) stated the principle that S. 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by S. 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed : "The oft quoted observation of Lord Hershell, L.C. in Browne v. Dunn clearly elucidates the principle underlying those provisions. It reads thus : "I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness 11 unworthy of credit. My Lord, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses." (Emphasis supplied) Further this Court in Smt.Shyama Kaushal vs. Shri Ram Lal and Anr. Latest HLJ 2001 (HP) 1070, has held as under:- “With a view to test the veracity of a witness examined by a party a chance is allowed to opponent to cross examine such witness. It is thereafter only that his evidence is to be appreciated. This is well known rule of law of evidence. As such it is incumbent upon a party to put the witness examined against him so much of his case as it pertains to a particular witness. In the absence of there being any cross examination a court would be justified in presuming what has been stated by the witness is to be accepted. Where a witness does not speak truth and the opponent does not cross examine him so as to show that what is the correct position, the court has no option, but for accepting the version, of course subject to there being no inherent improbability.” In my considered view the statement of PW-4 is totally reliable, trustworthy and believable. Inspite of lengthy cross-examination nothing has come out which would even cast a doubt about his credibility. Further RW-2, the driver of the ill-fated truck has also deposed that on 7.9.2003 he was driving the vehicle towards Bhunter and when he reached village Sharni, deceased Shri Sunit Singh loaded two tyres on his vehicle for repair and sat with him in the truck, to proceed towards 12 Bhunter. In cross-examination he denied the suggestion that the tyres were not loaded in the truck or that the deceased had taken a lift. That apart in the statement of RW-4, the Insurer’s own witness, there is not even a whisper about the fact that at the time of the accident the deceased was travelling in the vehicle as a gratuitous passenger. His statement is conspicuously silent about this fact as he has only proved the Insurance policy Ext.RW-1/A. It is true that while deposing the witnesses have not specifically stated that the vehicle was “hired”, by the owner of the goods, but, however, PW-4 owner of truck No. HP-66-1771, has specifically deposed that the deceased was travelling in the vehicle as owner of the goods. Importantly the Insurer did not cross-examine any witness to this effect. Both PW-1 and RW-2 have also deposed that deceased had loaded the tyres on the truck for being taken to Bhunter for repair. It is a settled law that the burden of proving a fact rests on the party who substantially asserts the affirmative issue and not the party who denies it. The proposition of law cannot be disputed but however, it is also a settled position of law that the said Rule may not be universal in its application and there may be an exception thereto. In the present case, the claimants had discharged their burden and the onus to disprove the same was on the contesting party to have at least prima facie shown that the deceased was travelling as a gratuitous passenger. Importantly, none of the witnesses have been cross-examined on this aspect nor the insurer has led any affirmative evidence oral or documentary, in this regard. 13 It is settled position of law that onus of proof looses much of its importance where both the parties have adduced their evidence (Paras Nath Thakur v. Mohani Dasi (deceased) and others, AIR 1959 S.C. 1204). There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a person who has to prove the fact which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Whether it is a Civil or a Criminal case, the anvil for testing of “proved”, “disproved” and “not proved”, as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. (R.V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.Temple, (2003) 8 SCC 752, Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136 & Dayamathi Bai (Smt) v. K.M. Shaffi, (2004) 7 SCC.107). Further, the Apex Court in Anil Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558, has held as under:- “A distinction exists between burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either or both of the others.” 14 It appears that the Insurer’s plea, that at the time of the accident the deceased was not travelling in the vehicle as owner of the goods was not taken up seriously and perhaps given up as the Insurer did not press for framing of issue with regard to the same. No evidence was also led to prove the same. The main defence being that the driver was not possessing a valid and effective driving licence, which is quite evident from the line of cross-examination adopted by the Insurer. Hence whether the deceased was a gratuitous passenger or not was not an issue on which the Tribunal was even required to return the findings. In any event, it is evident, as discussed hereinabove, the deceased was travelling as owner of the goods. In Lehru (supra), while dealing with a case where the Insurance Company took a plea that