The unchallenged deposition of a witness can establish the burden of proof on the opposing party in a motor vehicle accident case.

A.K. Chawla, J.

By the instant appeal, the appellant-the owner of truck bearing no.DL1LG-B-4770, in short 'the offending vehicle', assails the impugned judgment/Award dated 11.10.2013 passed by MACT (North-East), where under, the right to recover the Award amount from the appellant has been granted to the insurer-the respondent no.3. In view of the restricted challenge to the impugned Award, the advertence to the other factual aspects to maintain the claim petition before the Tribunal, is not called for.

2. The Tribunal granted recovery right to the insurer with the observations and the conclusions drawn in the impugned judgment/Award, as follows:

"Liability

14. It is the contention of the insurance company that the respondent no. 1 was not having valid and effective DL. Insurance company i.e respondent no. 3 has examined one Sh. Hajinder Pal Singh, Assistant Oriental Insurance Company as R3W1. R3W1 in his evidence stated that the driver Vijay Kumar i.e respondent no. 1 was having DL to drive only LMV. The offending vehicle i.e truck bearing no. DL 1LGB 4770 falls under the category of HMV. R3W1 has brought on record the report of the investigator as Ex R3W1/2 and Ex. R3W1/3. As per the report of investigator he has visited the office of DTO, Mujafar Pur and collected the particulars with regard to the DL of respondent no. 1. It is revealed that the respondent no. 1 has got license vide DL no. 401/03 which is valid from 09.05.2003 to 28.06.2010 and was allowed to drive LMV only. R3W1 also brought on record document issued by DTO, Muzzafar Pur, with regard to the license particulars of respondent no. 1. As per letter of DTO, Muzzafar Pur dated 17.06.2011, respondent no. 1 has got DL only to drive LMV.

15. It is clear from the record that the vehicle involved in the accident i.e. DL 1LG-B-4770 is a heavy goods vehicle. There is no evidence from respondents no. 1 & 2 to prove that respondent no. 1 was having a license to drive the heavy goods vehicle. In the above facts and circumstances, I am of the opinion that the respondent no. 1 was not having valid and effective DL to drive the heavy motor vehicle bearing no. DL 1LG B 4770 which is involved in the accident. There is also no evidence on behalf of respondent no. 2 to show that he has taken proper care and caution with regard to the DL and capability of respondent no. 1 to drive heavy goods vehicle. Hence the insurance company has made out a case for recovery rights."

3. The conclusions so drawn by the Tribunal are premised on the substantive deposition of R3W1. Though, R3W1 is not the author of the verification report Ex.R3W1/2, his deposition cannot be outrightly rejected for that reason. More so, when his deposition has not come to be challenged to any extent. Even no suggestion for his deposition being either unfounded or being not truthful, came to be given during his cross-examination, though, the appellant and the driver of the offending vehicle, were afforded opportunity for the purpose. Even, no other evidence or material, comes to be pointed out on behalf of the appellant, to not to believe his deposition. His deposition therefore, cannot be simply ignored. He proved the verification report Ex.R3W1/2 on record, and, the operative portion therefore, reads, as under:

"In respect to above referred Clam Case, I submitted the driving licence verification report earlier to your Office. Again on 07.10.11, I received an instruction to re-verify the D/L as the zerox copy of D/L bears that the said D/L is valid for LMV & HMV. Accordingly, the undersigned visited the Office of DTO Muzaffarpur. On my request, dealing asstt. produced the record register before me. I myself verified the D/L No. 401/03. Driver namely Sri Vijay Kumar is allowed to drive 'LMV' only.

DTO Certt. Memo No.3349 dated 17.06.11 is true and genuine as per record register. The driver is allowed to drive