IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: F.A.O. 2968 of 2002 DATE OF DECISION : July 7,2009 Smt. Raj Bala and others .......Appellants versus Jagbir Singh and others ......Respondents CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. Kulvir Narwal, Advocate for the appellants. Mr. R.C. Kapoor, Advocate for respondent No.2. NIRMALJIT KAUR, J. Brief facts of this case are that the deceased Ram Chander was employed by respondent No.1 on a monthly salary of Rs.5000/-. He was of 33 years. While driving the truck No.HR-46-9023 of respondent No.1 on dated 14-04-1999, he met with an accident on N.H.8 Shahjahpur with truck No.HR-46A-4411 which was coming from opposite side. Driver Ram Chander sustained fatal injuries in this accident. He was admitted in the hospital on 14-04-1999 and died on 23-04-1999. The claim petition was filed by the widow of deceased-Ram Chander, two minor sons, the widow mother as well as the old father. The said claim petition was allowed and the claimants were entitled to an amount of Rs.2,03,850/- along with 12% interest from the date of accident i.e. 14-04-1999 till the date of orders. In this case, respondent No.1 is the employer and owner of the truck, while respondent No.2 is the Insurance Company with whom the F.A.O. 2968 of 2002 -2- truck was registered. However, while passing the award, the liability to pay the compensation was fastened upon respondent No.1, on the ground that neither respondent No.1 nor the claimants have been able to prove that the deceased Ram Chander was having a valid driving licence at the time of accident. It is important to mention here that the appellants herein, in this appeal, have not received any single penny of the compensation, so awarded, till date. The present appeal has, therefore, been filed on two grounds. Firstly, the amount of compensation should be enhanced, keeping in mind Section 4A(3(b) of the Workmen's Compensation Act, 1923 which reads as follows :- “4A. Compensation to be paid when due and penalty for default.- (1) Compensation under Section 4 shall be paid as soon as it falls due. (2) XXX XXX XXX (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall- (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent of such amount by way of penalty:” Secondly, the Commissioner had erred in law and facts in deciding issue No.3 regarding the validity of the driving licence of the deceased-Ram Chander at the time of accident. The original driving licence of the deceased was lost at the time of accident and it was only photocopy, which was available with the applicants and the onus to prove that the licence was fake, when the particulars were furnished by the F.A.O. 2968 of 2002 -3- applicants was upon the respondent-Insurance Company, who have failed to discharge the onus. Learned counsel for the parties have been heard. Taking up the first plea raised by learned counsel for the appellants for enhancement of compensation on the basis of Section 4A(3 (b) of the Workmen's Compensation Act, 1923 that the appellants were entitled by a further sum, not exceeding 50% of the total amount due by way of penalty, is opposed by learned counsel for the respondent, on the ground that the said plea has not been specifically raised by the appellants in the grounds of appeal. Although, there is merit in the arguments raised by learned counsel for the appellants, I do not feel it proper to impose the penalty, in view of the following provisions of the Act which requires that Show Cause Notice should be issued to the employer before passing the order of penalty : “4A. Compensation to be paid when due and penalty for default- XXX XXX XXX Provided that an order for the payment of penalty shall not be passed under clause(b) without giving a reasonable opportunity to the employer to show cause why it should not be passed.” In the present case, since, the plea of penalty has not been specifically raised in the grounds of appeal, there is no opportunity for the employer to show cause or submit his reply in response. I do not, therefore, think it proper to impose the penalty. While substantiating the second argument, learned counsel for the appellants-Mr. Kulvir Narwal submitted that the photocopy of driving F.A.O. 2968 of 2002 -4- licence was produced by the applicant as Mark `A' and the onus was on the Insurance Company to prove that at the time of accident, the deceased was not holding a valid driving licence. The Insurance Company did not produce any evidence to the effect inspite of opportunity having been granted. Learned counsel for the respondent, however, disputed this position of law and submitted that the Insurance Company was liable to prove the driving licence, only if, the issue was to the effect i.e. whether Ram Chander was not holding a valid licence or `whether Ram Chander was holding an invalid licence.' In the present case, the issue framed was `whether Ram Chander was holding a valid driving licence at the time of accident.' Since, the issue was in affirmative, the onus was not on the Insurance Company to prove the licence and the same was on the appellant. I find no merit in the objections so raised by learned counsel for the respondent, in as much as, the learned counsel for the respondent has not been able to point out any difference in the two issues i.e. one framed by the Court and the one that was suggested by the learned counsel which according to him should have been framed in order to fasten the onus on the Insurance Company to prove whether the licence was valid or not. Further, the respondents, in their reply, in para 4 of the preliminary objections specifically took the stand that Ram Chander was not holding valid, effective and genuine licence at the time of alleged accident. The said preliminary objections, in the written statement, filed by respondent No.2 reads as follows :- “ That the alleged driver Ram Chander was not holding valid, effective and genuine driving licence at the time of alleged accident, hence the respondent No.2 is not liable to pay any compensation.” F.A.O. 2968 of 2002 -5- Once the Insurance Company takes a stand and raises an objection that the driving licence is not a valid licence, the onus shifts on the party raising the plea to prove the same. This is precisely what is held in the judgment, rendered by the High Court of Andhra Pradesh at Hyderabad titled as National Insurance co. Ltd. v. Illapu Seethamma and others 2001 ACJ 328, wherein, it was held that the onus shifts on the Insurance Company to prove the licence, wherein, the Insurance Company contended that driver of the offending vehicle did not possess a valid driving licence. The said judgment, further, relied on the judgment of Hon'ble the Supreme Court, in the case of Suresh Mohan Chopra v. Lakhi Prabhu Dayal 1991 ACJ 1 (SC). Moreover, in the present case, it would be highly unfair to expect the claimants to produce the original driving licence as Ram Chander himself had died and the claimants duly furnished the photocopy of the driving licence as mark `A' as well as the particulars of the driving licence i.e. number, name of issuing authority, date of insurance etc., and despite taking adjournments, the Insurance Company has not brought any evidence to show that the licence was fake one or not operative on the date of accident. A Division Bench of the High Court of Madhya Pradesh, Indore Bench, in the case of New India Assurance Co. Ltd. v. Iqubal and others 2001(ACJ) 236, held that any allegation regarding fakeness of licence, required to be proved by the party making the allegation. The said observation reads as follows :- “ 4. We have considered the matter and we find that there is nothing on record to show that appellant had specifically taken the plea of driving licence held by respondent No.1 to be bogus. It had only made a F.A.O. 2968 of 2002 -6- generalised averment that the licence was invalid without indicating basis thereof. After all, any allegation regarding the fakeness of licence was required to be specially pleaded and evidence led thereon after affording respondent Nos. 1 and 2 an opportunity of being heard in the matter to show that the licence was genuine. This was admittedly not done and, therefore, appellant could not claim any exoneration from liability on this ground. Even if, it was assumed that the licence held by respondent No.1 would turnout to be bogus, nothing would come in the way of appellant to recover the amount of compensation from the owner (respondent No.2). Meanwhile, claimants could not be allowed to be thrown on the road and go empty handed in disregard of intent and spirit of the Motor Vehicles Act.” Even, as per Section 101 of the Indian Evidence Act, 1872, whoever asserts a particular fact must prove that those facts exist. Section 101 of the Indian Evidence Act, 1872 reads thus :- “101. Burden of proof – Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” In the present case, it is an admitted position that it was respondent No.2 who alleged in the written statement that Ram Chander was not holding valid, effective and genuine driving licence. Accordingly, the onus was on respondent No.2 to prove the same. Inspite of opportunities, the respondent No.2 did not bring any evidence or to show F.A.O. 2968 of 2002 -7- that the licence was not valid. Thus, in the circumstances, facts and law, enumerated above, the findings of the Commissioner, Workmen's Compensation, Jhajjar dated 31-01-2002 on issue No.3 is set aside. Since, respondent No.2 has failed to prove or lead evidence that the Ram Chander was not holding valid, effective or genuine driving licence, the Insurance Company cannot disown the liability to pay the compensation. In view of the this, Issue no.3 is set aside and the findings on issue No.5 is modified to the extent that the Insurance Company will be liable to pay the compensation assessed by the Commissioner, Jhajjar dated 31-01-2002 under Workmen's Compensation Act, 1923 with interest @ 12% p.m. from the date of filing of the claim petition till realisation. The appeal is, accordingly, allowed and the order dated 31-01-2002 passed by Commissioner, Jhajar under Workmen's Compensation Act, 1923 is modified to the above extent. (NIRMALJIT KAUR) JUDGE July 7, 2009 gurpreet Whether to be referred to the Reporter : Yes / No