The burden of proof lies on the party asserting a fact, and adverse inference cannot be drawn without evidence.

JUDGMENT :

1. The above-titled Civil 1st Miscellaneous Appeal has been preferred by the appellants against the Award dated 31.10.2016, passed in claim petition titled “Krishan Lal vs. Mannu Ram & Ors.” by the Court of learned Additional District Judge as Motor Accident Claims Tribunal, Udhampur, (hereinafter referred to as “The Tribunal”), whereby the claim petition filed by respondent-Krishan Lal as claimant had been allowed and the appellants had been directed to pay an amount of Rs.85,000/- along with interest @ 7.5% per annum to respondent no. 1 i.e. Insurer of the vehicle

2. It has been pleaded that the respondent-Krishan Lal had filed a claim petition on the ground that on 17.05.2013, while he was standing on road side near JK City Scan, NHW Udhampur, a Tipper bearing no. JK14A/3629 being driven by its driver namely, Munnu Ram, hit him, as a result of which he sustained grievous injuries and was later on, certified to have suffered 7% disability; that initially the petition had been filed amongst others against registered owner of the vehicle-Nitish Gupta, who later died and the appellants and his parents were impleaded as party respondents in his place, who appeared through their counsel and filed objections; that the respondent insurance company in its objections to the claim petition had taken a stand that the petition was not maintainable and also took a stand that the driver of the vehicle was driving the vehicle without having any valid and effective driving license at the time of accident and also that the vehicle was being driven in contravention of the registration fitness certificate and route permit of the vehicle; that the Tribunal among other issues also framed issue no. 4 onus of which was placed on the respondent-insurer, which reads as under:-

“4. Whether at the time of occurrence the offending vehicle was being plied in breach of its policy conditions i.e. in violation of Registration Certificate, fitness and route permit if so, what is its effect?” (OPR-3)

3. The appellants further pleaded that the insurance company did not lead any evidence to prove the aforesaid issue and the Tribunal vide impugned award returned a finding on this issue wrongly by drawing an adverse inference against the owner that on the date of accident, there was no valid road permit and fitness certificate of the offending vehicle, and, as such, the vehicle was being driven in violation of the terms and conditions of the policy at the time of the accident.

4. The impugned award has been assailed on the ground that the Tribunal had not appreciated the material on record and the relevant law on the subject in its right perspective and had wrongly granted liberty to the respondent-Insurer to recover the amount from the owner of the vehicle; that the offending vehicle was not used for transport purpose, so it did not require any fitness certificate or route permit from the Transport Authority; that the insurer at the time of issuance of the policy had verified that the vehicle in question possesses all the necessary certificates including fitness certificate and route permit, as such, the respondent -Insurer cannot be heard to say that it does not possess the copies of the fitness certificate and route permit and further that it can be absolved of the liability/burden to prove that the vehicle in question was being plied without fitness certificate and route permit by merely making an application before the Tribunal calling upon the appellants to produce the documents especially when the original owner of the vehicle in question has expired and the appellants were arrayed as respondents in the claim petition being his legal heirs; that the burden of proof lies on the person who asserts a fact and would fail if no evidence at all is given by either side as per the Evidence Act. That being so, it was the respondent-insurer who had to prove that the vehicle was being plied without having proper fitness certificate and route permit; that the p