Back
2011 Supreme(Raj) 1216
(Rajasthan High Court)
Jaipur Bench
United India Insurance Co. Vs. Smt.Prem Devi & Ors. (Rafiq, J.)
MOHAMMAD RAFIQ, J.
United India Insurance Co.Ltd.
Versus
Smt.Prem Devi & Ors.
S.B. Civil Misc. Appeal No.49 of 2002, decided on 15.11.2011
Ashok Mehta, Senior Advocate with Arif Mohd. Madani, for Appellant;
Prahlad Sharma, for Claimant-Respondents
POINT DECIDED
Onus of proving that the driver did not have any valid driving licence lies on the insurance company – It is not shifted to the claimant.
Headnote:Motor Vehicles Act, 1988, Secs. 149, 168 & 173 — Liability of Insurance Company — Appeal for setting aside award against insurance company — Contention that claimants could not prove that driver had valid licence — Original driving licence was not produced by claimants or owner despite specific allegations by appellant — Held — Insurance company has produced its defence but cannot be discharged its onus of proving that driver did not have any valid licence — Onus cannot be shifted on claimants — No error in finding of tribunal — Award confirmed.
Appeal dismissed. (Paras 4 & 5)
eksVj ;ku vf/kfu;e] 1988] /kkjk 149] 158 ,oa 173 & chek daiuh dk nkf;Ro & chek daiuh ds fo:) vf/kfu.kZ; vikLr djus gsrq vihy & rdZ fd nkosnkjx.k lkfcr ugha dj lds fd pkyd fof/kekU; vuqKfIr j[krk Fkk & vihykFkhZ }kjk fofufnZ"V vkjksiksa ds ckotwn nkosnkjku ;k Lokeh }kjk ewy pkyu vuqKfIr izLrqr ugha fd;k x;k Fkk & vfHkfu/kkZfjr & chek diauh viuk izfrj{kk izLrqr fd;k ysfdu ;g lkfcr djrs gq, viuk Hkkj mUeksfpr ugha dj ldk fd pkyd dksbZ fof/kekU; vuqKfIr ugha j[krk Fkk & nkosnkjku ij Hkkj LFkkukarfjr ugha fd;k tk ldrk & vf/kdj.k ds fu"d"kZ esa =qfV ugha & vf/kfu.kZ; iq"V fd;k x;kA ¼in l[;k 4 ,oa 5½
vihy vLohdkj dhA
2. Contention of the learned counsel for the Insurance Company is that the claimants could not prove that the driver had valid license and that the original driving license was not produced either by the claimants or owner despite specific allegations made by the appellant Insurance Company in that behalf. It was argued that burden of proving the valid license was on the claimants and the owner and not on the Insurance Company. It was argued that the driving license was also not produced during investigation. Owner should be held responsible for making payment of compensation. Appellant had paid the amount of compensation to the claimants and it should be given the recovery rights. The appeal therefore be allowed and the award of the Tribunal may be set-aside.
3. Learned counsel for the claimant-respondents has opposed the appeal and argued that photocopy of the driving license was exhibited after producing the original thereof in the Court and after making comparison thereof, the photocopy thereof was exhibited in evidence. Learned Tribunal therefore has passed a just and reasonable amount of compensation holding insurance company, driver and owner to pay compensation jointly and severally. The appeal of the insurance company therefore be dismissed.
4. Having heard learned counsel for the parties and perused the award, I find that Tribunal on Issue No.3 has noted the evidence of DW-1 Jaiman Singh, representative of RTO office, which the Insurance Company has produced in its defence before the Tribunal. DW-1 Jaiman Singh in his statement has stated that they could not locate the original record of Registered License No.RJ.28/D.L./0413/92 dated 20.5.1992 because their office was shifted from old building to new government building due to which, the record has been mixed up and hence the original record could not be produced. The RTO sent the information vide Exh.D3 to the police, certified copy of which was exhibited as Exh.D3A and after going through the photocopy of the driving license, he could not make any certain comment thereabout because there were over writings and cuttings.
5. In the circumstances, therefore, it cannot be said that the Insurance Company discharged its onus of proving that the driver did not have any valid license or onus shifted to the claimants. The onus of proving Issue No.3 was upon the Insurance Company, which it failed to prove therefore no fault can be attributed to the finding of the learned Tribunal given on Issue No.3 in favour of claimants and against the Insurance Company.
6. The appeal is therefore dismissed. The record be transmitted back to the Tribunal forthwith.
