The burden of proof regarding key issues such as driver's license and unauthorized use of a vehicle rests with the concerned party, and legal principles established in previous judgments influence the court's decision in recalculating compensation.

JUDGMENT :

1. Heard Sri Arun Kumar Shukla, learned counsel for the appellant. None has appeared for the respondents.

2. By way of this appeal, the New India Assurance Co. Ltd., has challenged the judgment and award dated 19.5.1992 passed by Motor Accident Claims Tribunal/1st Additional District Judge, Kanpur Nagar in Claim Petition No.125 of 1985 awarding sum of Rs.5,60,000/-as compensation with 12% rate of interest. The deceased was survived by widow, two sons and mother. Cross objections came to be filed belatedly and, therefore, though the delay is condoned, it goes without saying that while discussing grant of interest, this aspect has to be considered as per judgment of the Apex Court in Lakkamma and Others Vs. The Regional Manager M/s United India Insurance Co. Ltd., AIR 2021 SC 3301.

3. By way of this appeal, the Insurance Company has challenged the award and the formal order mainly on two grounds namely that the vehicle was unauthorizedly taken out of the garage and driver had no driving license where it was sent for repairs by the owner of the vehicle and that the compensation awarded is on the higher side.

4. Brief facts as culled out from the record and the judgment of the Tribunal as from 1992 though the appeal is pending, record has not been summoned. The reason being it is an admitted position of fact that issue number 3 which has been decided by the Tribunal is against the principle laid down by the Apex Court way back in the year 1997 in the case of United India Insurance Co. Ltd. v. Gian Chand and others, AIR 1997 SC 3824. Recent judgment of Apex Court in Pappu and others v. Vinod Kumar Lamba and another, 2018 (1) TAC 360.

5. The factual scenario as it emerges is that the deceased met with the vehicular accident because of the negligence of the driver of the opposite vehicle. The issue of negligence decided by the Tribunal is not in dispute.

6. The Insurance Company has challenged the judgment contending that finding of the Tribunal is wrong and incorrect as the statement of Ajay Malhotra could not have been relied upon in as much as in fact for which documentary evidence was available but was not produced by the person in whose possession vehicle was and his oral statement cannot be relied upon regarding the fact that driver had driving license.

7. The Insurance Company has raised the ground that if the Ajay Malhotra had any driving license for driver cum mechanic Mahesh employed by him that should have been produced before the Tribunal to prove that fact and, therefore, the Insurance Company had no way of laying its hands on the aforesaid document.

8. It is also a ground that decision of the Supreme Court which has been cited, there was no element of driving involved and as such that ruling is not applicable to the present case. It has also been averred that the owner having specifically stated that he did not permit the garage owner to take out the vehicle on road that means the vehicle was being driven without the permission of the owner and as such the owner as well as the insurer cannot be held liable for the same.

9. It is next averred that the license being in possession of the respondent, Kanpur Tractors and their employee and the same having not been produced, the Tribunal should have drawn an adverse inference against them and the Tribunal has erred in law in holding that Mahesh, respondent, was having a valid driving license.

10. It is lastly averred that the amount awarded is highly excessive inasmuch as the income of the deceased was assessed at Rs.6,000/-per month and since he would have been spending a substantial amount for personal expenses, the sum of Rs.5,60,000/-as award is highly excessive.

11. Neither the driver of the vehicle nor the owner namely respondent No.6 filed any documentary evidence so as to bring on record that the vehicle was driven with knowledge of the original owner of the vehic