Calcutta High Court (Appellete Side)

Sri Drub Saw vs Basanti Garain & Ors on 8 August, 2023

08.08. 2023
item No.7
n.b.
ct. no. 551                 FMA 75 of 2013
          With
             IA No. CAN 2 of 2015(Old No. CAN 4664 of 2015)
          +
                  CAN 3 of 2023(not in the file)

                                Sri Drub Saw
                                    Vs.
                             Basanti Garain & Ors.

                    Mr. Rajdeep Biswas,
                                .....for the appellant.
                    Mr. Rajesh Singh,
                                ...... for the respondent no.5.

Mr. Amal Kumar Banerjee, ...... for the claimant/respondent.

The appeal has been preferred against the judgment

and award dated June 27, 2012 passed by the learned

Judge, Motor Accident Claims Tribunal, Purulia in MAC

Case No.2 of 2010.

The brief fact of this case is that the claimant

preferred an application under Section 166 of the M. V.

Act before the learned Tribunal for getting compensation

on the ground that their predecessor has died in a road

traffic accident. The Insurance Company contested the

claim case by filing the written statement. The owner of

the truck i.e. opposite party before the learned Tribunal

did not contest the case. The learned Tribunal on perusal

of the rival pleadings of the parties has framed six issues

to decide the claim case. During the trial the evidences

were adduced on behalf of the claimants as well as the

Insurance Company and after hearing the parties, the

learned Tribunal has awarded a sum of Rs.9,26,000/- in

favour of the claimant towards the compensation and

directed the opposite party no.2/Insurance Company to

pay the same through the Account Payee Cheque and the

Insurance Company was given a liberty to recover the

same from the owner of the Truck on the ground that at

the time of the alleged accident, the offending vehicle had

no valid route permit to ply at the place of accident.

The owner of the truck being aggrieved by and

dissatisfied with the impugned award has preferred this

appeal.

Learned advocate for the appellant (owner) has

submitted that the Insurance Company has raised the

issue by submitting the written statement with the effect

that the alleged offending vehicle had no route permit.

The I.O. has deposed before the learned Tribunal as P.W.

4, who stated before the learned Tribunal that he did not

make investigation in respect of the route permit of the

offending vehicle and during the course of investigation,

the route permit was not seized.

He also argued that the pleadings of the Insurance

Company was not sufficiently proved by the Insurance

Company itself. The Insurance Company should have

produced necessary witnesses to prove the fact that the

offending vehicle had no valid route permit at the time of

accident on the alleged place of occurrence. He again

argued that the Insurance Company has the onus to prove

his pleadings but it was not proved in respect of which the

learned Tribunal has passed the impugned order directing

the Insurance Company to recover the compensation

amount from the owner, which is completely erroneous.

In support of his contention he cited the decision of

Kamala Mangalal Vayani & Ors. Vs. UnitedIndia

Insurance Co. Ltd. & Ors. reported in 2010 ACJ 1441,

wherein the Hon'ble Supreme Court has decided the issue

with the finding the claimants are not expected to prove

that the vehicle had a valid permit, nor prove that the

owner of the vehicle did not break any of the terms-

insurer open to the concerned transport authority for a

certificate to show that the vehicle did not have a permit

and produce the same as evidence which it failed to do so.

He also cited the decision of Swaran Singh & Ors.

regarding the same issue in respect of fake valid driving

licence. He also cited decisions of Amrit Paul Singh &

Ors. and Laxmi Narain Dhut. By citing the above case

laws of the Hon'ble Supreme Court, it is argued by the

learned advocate for the appellant that the pleadings as

preferred by the Insurance Company must have to be

proved by producing evidences. The Insurance company

though contested the matter before the learned Tribunal,

but has not produced any document or has not produce

any oral witness to substantiate the claim that the

offending vehicle had no valid route permit on the alleged

date of accident.

On that score, he submitted that the impugned

order passed by the learned Tribunal need be set aside

and the Insurance Company may solely be liable to pay

the compensation amount.

Mr. Singh, learned advocate appearing on behalf of

the Insurance Company submitted before this Court that

the owner of the offending vehicle never appeared before

the learned Tribunal after having received the notice of the

said proceeding. He chose not to appear. Thus, the

Insurance Company has filed the written statement and

the application under Section 170 of the M.V. Act was filed

to contest the claims on all available grounds. The

pleadings was preferred by the Insurance Company by

way of written statement specifically contending, inter

alia, that offending vehicle had no valid route permit. He

submitted before this Court that the ground stated in the

pleadings i.e. written statement is available as a statutory

defence under Section 149(2) of the M.V. Act. He

submitted before this Court that Hon'ble Supreme Court

in Pappu & Ors. Vs. Vinod Kumar Lamba & Ors.

reported in 2018 SC 592 has specifically held the onus to

prove the existence of a specific document under the

custody of a person otherwise Insurance Company has to

be produced initially by that person. He referred

paragraph 11 of the said judgment read as follows:-

"11. The question is: whether the fact that the offending vehicle bearing No.DIL-5955 was duly insured by Respondent No.2 Insurance Company would per se make the Insurance Company liable? This Court in the case of

National Insurance Co. Ltd. (Supra), has noticed the defences available to the Insurance Company Under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time. In the present case, the Respondent No.1 owner of the offending vehicle merely raised a vague plea in the Written Statement that the offending vehicle DIL - 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, the Respondent No.1 did not enter the witness box or examine any witness in support of this plea. The Respondent No.2 Insurance Company in the Written Statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. The Respondent No.1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring the Respondent No.2 Insurance Company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending Truck was not enough for the Respondent No.1 to make the Insurance Company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owenr of the offending vehicle-that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the Written Statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle."

On that score, he argued before this Court that the

Insurance Company has raised the plea, thereafter, the

onus is shifted upon the owner of the offending vehicle to

submit some evidence or document so that the burden

can be shifted back to the Insurance Company to

disapprove the said document. In this case, the owner has

not appeared before the learned Tribunal. The owner has

preferred this appeal. No any specific application was filed

alone with valid route permit by the owner before this

Appellate Court. On this score, it is evident that the

offending vehicle had no valid route permit at the time of

alleged accident. Thus, the impugned award passed by

the learned Tribunal is not perverse. He argued before this

Court that the Learned Tribunal has passed the award on

the basis of the law laid down in the Hon'ble Supreme

Court passed in Challa Bharathamma but the

procedure for execution of the said award need be

categorically followed by the said judgment. He argued

that the owner of the offending vehicle is before this

Appellate Court, so instead of order of pay and recovery

the owner may be directed to pay the compensation.

Heard the learned advocates and perused the

materials on record with entire paper book. It is true that

the owner has not contested the case before the learned

Tribunal. The Insurance Company has submitted written

statement, wherein it has been specifically pleaded that

the vehicle in question had no valid permit on the date of

accident. The claimant being the third party has

produced the evidences to prove the rash and negligent

driving of the offending vehicle and the police papers also

produced before the learned Tribunal, which was

exhibited. The I.O. appeared before the learned Tribunal

as P.W.4, specifically stated that no seizure has been

effected regarding the permit of the offending vehicle and

he also not conducted any investigation to ascertain

whether the offending vehicle had the valid permit at the

alleged time of accident or not.

Now, considering the question before this Court that

whether the pleading filed by the Insurance Company is to

be proved by him or whether the Insurance Company has

no initial burden to prove this fact in the pleading.

It appears to me that the defence available to the

Insurance Company under Section 149(2) of the M.V. Act

is the statutory defence by which the Insurance Company

may file written objection/statement on the ground that

the offending vehicle had no valid route permit or the

driver of the offending vehicle did not possess any valid

licence. The route permit was not seized by the police

during the course of investigation that tantamount the

route permit was not there in the offending vehicle at the

time of accident.

Section 106 of the Indian Evidence Act, emumarated

as under:

"106. Burden of proving fact especially within

knowledge.- When any fact is especially within the

knowledge of any person, the burden of proving that fact is

upon him."

The person have a special knowledge must have to

be proved by that person Section 106 of the Evidence Act.

The route permit is within the special knowledge of the

owner. It is true that the owner was not appeared before

the learned Tribunal but it appears that owner is the

appellant in the appeal, which was filed in the year 2013.

The owner had the opportunity to file necessary

application under Order 41 Rule 27 of the Code of Civil

Procedure along with route permit before this Appellate

Court, but the owner has not adopted the procedure. The

appellant kept himself mum, when he has a duty to

speak. This conduct raises the adverse presumption

against the appellant. Consequently, it is apparently

correct that the owner had no valid route permit at the

time of accident. The question regarding the proof of the

pleadings, it appears to me that the route permit is within

the special knowledge of the owner of the vehicle. Thus,

the owner of the vehicle must have to produce the

document initially to disprove the statutory defence of the

Insurance Company. The owner has not adopted the

procedure to file the document and the owner also not

filed an application before this Appellate Court along with

valid route permit that is why the owner could not shifted

the burden initially lies upon him.

Considering the same, it appears to me that

impugned award passed before the learned Tribunal

suffers no illegality. The FMA is dismissed. Furthermore,

the learned Tribunal has passed the impugned award on

the basis of the law laid down by the Hon'ble Supreme

Court in Challa Bharathamma and directed the

insurance Company to pay the compensation and recover

it from the owner. The Insurance Company has argued

that the owner may be ordered directly to pay the

compensation to the claimant as the claimant is suffering

much for the compensation since the date of accident.

Now, it is necessary to set out the direction to

Supreme Court in Para 13 of Challa Bharathamma.

"13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executive Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executive Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insure."

Considering the same, I think it necessary that the

procedure as enumerated by the Hon'ble Supreme Court

in Challa Bharathamma is to be strictly followed and the

procedure for submission of security must also have to be

followed by the appellant within 8 weeks before the

Tribunal. The Insurance Company shall pay the

compensation to the claimant within 10 weeks from the

date of passing of this order through the office of the

Tribunal; failing which, the Tribunal is directed to proceed

against the owner of the vehicle on the basis of an

application of this Insurance Company by freezing the

Bank Account, or by seizing moveable or immovable of the