Jammu & Kashmir High Court
Ved Raj Gupta vs The New India Assurance Company Ltd on 20 February, 2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
02
AT JAMMU
Case: Mac App No. 115/2020
CM No. 3632/2020 Reserved on- 15.02.2024
Pronounced on- 20.02.2024
01. Ved Raj Gupta, S/O Sh. Ram Ditta,
R/O Venus Chowk, Ward No.l5,
H .No.227, Dhar Road, Udampur.
02. Usha Devi, W/O Ved Raj
R/O Venus Chowk, WardNo.l5,
H.N0.227, Dhar Road, Udhampur ...Appellants
q
Through: Mr. Jatinder Choudhary, Advocate.
vs
01. The New India Assurance Company Ltd,
Slathia Chowk, near Court Complex, Udhampur
02. Krishan Lal,(Claimant), S/O Sh. Phulla Ram,
R/O Village Battal Ballia,
Tehsil Udhampur Distt Jammu
03. Munnu Ram, (Driver), S/O Sh. Moti Ram Bhaga
R/O Jhajar Kotli, Tehsil & Distt. Jammu ....Respondents
Through: Mr. Rupinder Singh, Advocate with
Ms. Damini Singh Chouhan, Advocate for R-1
Nemo for R-2 & 3.
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
01. 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
02. 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 sustainted
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)
03. 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.
04. 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 presumption under the Evidence Act
can be drawn only if the evidence could be and is not produced. However, in the
present case, the original legal heirs of the vehicle in question had been repeatedly
praying before the Tribunal that the appellants were not in possession of the
documents which they have been called upon to produce and they have applied for
the issuance of the certificates to the transport authorities but the same have not
been supplied to them and sought time for the production of the same; that the
offending vehicle on the date of accident had valid fitness certificate as well as
route permit but the same could not be produced at the relevant point of time for
the reason that the same were not in the possession of the appellants.
05. Mr. Jatinder Choudhary, learned counsel appearing for the appellants,
reiterating the grounds pleaded in the memorandum of the appeal, vehemently
argued that the claim petition had been filed before the Tribunal by the claimant
Krishan Lal on 02.12.2013, impleading registered owner of the vehicle Nitish
Gupta, in whose place, the appellants after his death had been impleaded as
respondent no. 2 and that aggrieved of the finding recorded on issue no. 4 by the
Tribunal, drawing adverse inference merely on the failure of the appellants herein
as respondents before the Tribunal to produce documents as per direction of the
Tribunal. He has argued that the onus to prove this issue had been placed on the
respondent-Insurer, therefore, it was incumbent upon it to lead evidence to prove
this issue. However, the respondent insurer failed to lead any evidence as it had
failed to produce on record any document sought to be proved or to submit a list
of witnesses so as to examine any official from the Transport Authority granting
fitness certificate or route permit or to examine owners of the vehicle as witnesses
and in absence of any such step, the Tribunal, in a very strange manner, on an
application moved by the respondent insurer directed the owner appellants to
produce the documents in question which were not in their possession as the
original registered owner had died, therefore, the adverse inference drawn by the
Tribunal against the appellants for not having documents was fallacious and the
Tribunal could not have decided the issue in the manner it had decided in favour
of the respondent-Insurer and prayed that the award to the extent of authorizing
the respondent insurer to pay the awarded amount and then to recover it from the
appellants owners be set-aside.
06. Mr. Rupinder Singh, assisted by Ms. Damini Singh Chouhan, Advocates,
appearing for respondent-Insurance Company, ex adverso, argued that had the
appellants being legal heirs as parents of the deceased registered owner Nitish
Gupta were in possession of the documents, they should have produced the same
before the Tribunal. Despite direction they did not produce the same before the
Tribunal, as such, the Tribunal had rightly drawn the adverse inference with
regard to the fact that the vehicle was being driven at the time of accident without
road permit and fitness certificate. He has further argued that the appellants
instead of placing on record the copies of the documents should have moved an
application for leading evidence in this Court, at appellate stage in terms of order
41 Rule 27 of CPC. However, they have chosen not to adopt this course and, as
such, the finding recorded by the Tribunal on issue no. 4 on the basis of adverse
inference cannot be interfered with for the reason that the documents were
available with the appellants even at the time of passing of the award.
07. Heard arguments on both the sides, perused the record and considered the
matter.
08. One Krishan Lal claiming to have been disabled as a result of the injuries
received by him in a vehicular accident involving Tipper bearing no. JK14A/3629
on 17.05.2013 on National Highway at Udhampur, being driven rashly and
negligently by its driver Mannu Ram filed a claim petition before the Tribunal. It
appears that respondent no. 2 Nitish Gupta, who was registered owner of the
offending vehicle died during the pendency of the petition before the Tribunal and
was substituted by his legal heirs Ved Raj Gupta and Usha Devi as his parents. On
filing objections by the respondents, the Tribunal raised following issues on the
basis of the pleadings;
i) Whether on 17.05.2013 at about 8 p.m, when the petitioner
was standing on the road side Near JK City Scan NHW
Udhampur, was hit by a vehicle (Tipper) bearing No.
JK14A/3629 driven by respondent no. 1 in rash and negligent
manner in high speed thereby causing injuries to the
petitioner?(OPP)
ii) In case issue no. 1 is proved in affirmative, whether the
petitioner is entitled to receive the compensation, if yes, from
whom and the quantum? (OPP)
iii) Whether the offending vehicle was being driven by the
driver who did not possess a valid and effective driving license at
the time of accident, if so, what is its effect? (OPP-3)
iv) 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 certificate and route permit if
so, what is its effect? (OPP-3)
v) Relief ?
09. The Tribunal vide impugned award granted compensation to the tune of Rs.
85,000/- including amount of Rs. 25,000/- as no fault liability along with interest
@ 7.5% per annum from the date of filing of the petition till its final payment in
favour of the claimant. The Tribunal on the basis of finding recorded on issue no.
IV, fastened the liability on the owner, instead of insurer. Para no. 15 of the
impugned Award, being relevant is reproduced, for convenience:-
"15. The onus to prove these issues rested upon the respondent no. 3
in claim petition i.e, insurance company. The respondent no. 3
has filed an application directing the legal representatives of the
deceased owner to produce the documents viz fitness certificate
and route permit of the offending vehicle. The legal
representatives of the owner are duly represented by the counsel
in the case but they chose not to appear and furnish the
documents despite the directions of the Court. The adverse
inference is to be drawn against the owner that on the day of
accident there was no valid route permit and fitness certificate of
the offending vehicle. The vehicle was thus driven in violation of
the terms and conditions of the policy. The issue no. 3 thus stands
proved in favour of respondent no. 3 against the petitioner."
10. In view of finding recorded on issue no. (iv) drawing adverse inference, on
failure of the respondents (appellants herein) to produce route permit and fitness
certificate of the offending vehicle, the Tribunal fastened the liability to pay the
awarded amount on the owner as it was recorded that the insurance company had
successfully proved that the owner was not having route permit and fitness
certificate. It was for the owner of the vehicle to controvert the position but his
legal heirs had chosen not to prove their case and as such, the insurance company
was held to be not liable to indemnify registered owner and finally the respondent
insurer was directed to firstly pay the amount to the claimant and then recover the
same from the owners of the vehicle.
11. Since the onus to prove issue no. IV had been placed on the respondent-
insurance company, which had taken a specific plea in its pleadings before the
Tribunal that the vehicle was being plied in breach of the conditions of the
insurance policy as in violation of the registration certificate, fitness certificate
and route permit. The respondent-insurance company, as per record of the
Tribunal, had not led evidence of any sort, except that it had moved an application
before the Tribunal seeking a direction to the appellants as respondents therein for
production of the documents. The respondent-insurance company at the time of
insuring of offending vehicle would have scrutinized the documents at least the
registration certificate of the vehicle and was also in a position to seek the
verification reports with regard to all the documents i.e. registration certificate,
fitness certificate and route permit of the vehicle from the registering transport
authority. The respondent-insurance company had not taken pains to do any of
these acts and was satisfied only on moving an application for a direction to the
owner of the vehicle for production of the documents. The respondent-insurance
company to discharge the onus to prove an issue which was to be proved by it,
should have led some evidence indicating that the vehicle was being driven
without any registration certificate and route permit, however, if it had failed to
examine even an official of the company or any official/officer from the
registering transport authority, to prove its contentions.
12. The Tribunal just on moving an application by the respondent-insurer for a
direction to produce documents by the owner and on failure of the owner to do so
had drawn an adverse inference that the owner had no documents like registration
certificate, fitness certificate and route permit at the time of the accident. Such an
inference cannot be drawn without there being any evidence led by the party on
which the onus to prove the issue had been placed. The Tribunal in the considered
opinion of this Court has very strangely held that since the owner had failed to
produce any document as per directions of the Tribunal, an inference can be
drawn that the respondent insurer on whom the onus to prove the issue had been
placed, had proved the same. Such a recourse in the considered opinion of this
Court is not permissible in view of the provisions of the Evidence Act as it is
always the party that asserts a thing has to prove the same and it is not for the
other party to prove the same as a reverse burden without any specific law on the
subject. It will not out of place to mention that the appellants who had stepped into
the shoes of their deceased son as owner had taken specific plea that they were not
in possession of the documents of the offending vehicle and had sought time for
their production. It appears that the Tribunal had overlooked this important aspect
of the matter as well.
13. Having regard to the afore-stated discussions and observations made
hereinabove, this Court is of the considered opinion that the Tribunal has
misdirected itself to hold that issue no. IV has been proved by the respondent
Insurance Company on the basis of the adverse inference drawn by the Tribunal
on the failure of the owner of the vehicle to produce the documents, as such, the
finding recorded on issue no. IV is not maintainable and is liable to be set-aside.
14. Viewed thus, the finding recorded on issue no. IV by the Tribunal being
arbitrary, is set-aside and it is held that the respondent Insurance Company had
failed to prove the issue that the offending vehicle at the time of its accident was
being driven without registration certificate, fitness certificate and route permit for
want of evidence. As a result, the appeal succeeds and is allowed. Impugned order
is modified to the extent that the awarded amount shall be payable by the
respondent Insurance company with no right of recovery from the appellants. The
awarded amount, if deposited, with the Registry of this Court is ordered to be
released in favour of the respondent claimant along with interest accrued thereon,
on due identification.
15. Tribunal record be sent down forthwith along with a copy of this judgment
for information and record.
(MA Chowdhary)
Judge
Jammu
20.02.2024
Abinash
