The Deputy Manager Magma ... vs Supriya Bundela
2021 Latest Caselaw 4455 Jhar

              MISCELLANEOUS APPEAL NO. 332 OF 2016
                                     -----
            (Against the judgment dated 29.3.2016 passed by
            the District Judge IV-cum-MACT, Bokaro in T.M.V.
            No. 114 of 2013).
                              -----
The Deputy Manager Magma (Insurance Company)
Magma House, 24 Park Street, Kolkata.                      ... Appellant(s)
                              Versus.
   1. Supriya Bundela
   2. Prerna Singh
   3. Amrit Raj
   4. Santosh Kr. Verma.
   5. Santosh Kr. Singh.                                   ... Respondent(s)
                               -----
For the appellant(s):         Mr. Bibhash Sinha, Advocate.
For Respondent No. 4 & 5:     Mr. Naresh Pd. Thakur, Advocate
For respondent Nos 1 to 3:    Mr. Mukesh Kumar, Advocate.

                         Present:
             HON'BLE MR. JUSTICE ANANDA SEN.
                         -----
                     JUDGMENT

The appellant-Insurance Company has preferred this appeal against the judgment dated 29.3.2016 passed by the District Judge IV-cum-MACT, Bokaro, in T.M.V. No. 114 of 2013.

2. The only ground, which has been urged by the Insurance Company in this appeal is that they should be granted the right to recover the amount of compensation from the owner of the vehicle as the offending vehicle was being driven by a driver who at the time of accident, did not have any valid driving licence. Counsel for the Insurance Company further submits that a specific plea in the written statement has been taken that the driver of the offending vehicle was driving the vehicle without valid licence and since there was no rebuttal of the said pleading nor there being any evidence adduced by the owner or driver of the vehicle to counter the said submission, it will be presumed that there was violation of condition of the insurance policy, thus, the Insurance Company is entitled to recover the amount of compensation. He also submits that as tribunal on erroneous ground has not considered the aforesaid point, thus appeal has been preferred. He further submits that he is not challenging the quantum of compensation nor challenging any aspect of claim made by the claimants. He also submits that the respondent-owner of the vehicle, appeared and it is an admitted fact that the owner has not filed any written statement before the Tribunal, so vide order dated 28.7.2015, the owner was debarred from filing written statement. He further submits that the owner of the vehicle did not produce any documents before the tribunal.

3. Considering the limited ground raised in this appeal, the scope of this appeal becomes very narrow and it is only to be decided as to whether the Insurance Company is entitled for recovery of the compensation amount from the owner of the vehicle.

4. When I go through the impugned award, I find that the Tribunal has framed several issues, out of which Issue No. 4 and 5 read as under:

4. Whether the driver of offending vehicle was having valid driving licence at the relevant time of accident?

5. Whether the offending truck bearing No. CG-04/JB-3417 was insured with the MAGMA Insurance Company at he relevant time of accident?

5. While deciding issue No. 4 and 5, the Tribunal in paragraph-9 of this judgment, held that the Insurance company has not led any evidence to prove the fact that the driver of the Truck was not having any driving licence. Mere assertion in the written statement that the driver was not having a valid driving licence is not sufficient to prove the fact that the driver was not having any valid driving licence. The tribunal has further held that the licence of the driver is a matter in between the insurer and the owner of the truck. The tribunal further held that the Insurance Company may sue the owner of the truck in case where the driver of the offending vehicle was not having valid driving licence.

6. From the aforesaid observation in para-9 of the award, I am of the view that the Tribunal has left open the issue of the driving licence of the vehicle. Whether there was violation of conditions of the insurance policy or not has also not been answered. When I go through the written statement of the Insurance Company, I find in paragraph 11 of the said written statement there is specific plea which has been taken by the Insurance Company to the effect that the offending vehicle was being driven by a driver who did not possess a valid licence. It is necessary to quote paragraph 11 of the written statement which reads as follows:

"11. That, this petitioner submits that the vehicle in question was being plied by an unlicensed driver. So, as per term and conditions of the policy as well as Section 149(2) of the Motor Vehicle Act, 1988. Where the vehicle was being driven by the driver without valid and bona fide driving license and caused accident then the Insurance Co. would not be liable to pay any compensation or part thereof."

7. Thus, from the aforesaid statement of the Insurance Company, it is clear that the Insurance Company has taken plea that the vehicle was being driven by a person without having valid driving licence. The tribunal has concluded that the statement is not sufficient rather the insurance company has to prove the aforesaid statement. It is well settled that a negative fact cannot be proved. A negative fact can be asserted, which needs rebuttal.

8. Be it noted that this fact could have easily been rebutted by the owner of the vehicle, which he did not. Even if the owner of the vehicle was debarred from filing written statement, he could have adduced evidence by bringing on record the valid driving licence to rebut the assertion of the Insurance Company,, but the owner of the vehicle did not bring on record any evidence to the effect that the vehicle was being driven by a person having valid driving licence in spite of opportunity, given to him. Thus adverse inference must be drawn against the owner of the vehicle. The Hon'ble Supreme Court in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another reported in (2018) 3 SCC 208, in para 12 has held as under:-

"12. This Court in National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297 has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicle Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorized 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 authorized by him to drive the vehicle and was having a valid driving licence at the relevant time."

9. In terms of the aforesaid judgment, the owner of the vehicle has failed to discharge the onus, which was upon him. If the owner of the vehicle failed to discharge the onus, which was upon him, the Insurance Company was not bound to come up with any evidence, more-so when the fact is negative. Thus, this Court holds that the owner of the vehicle has failed to discharge the onus and has not stated that the vehicle was being driven by an authorized person, nor has brought any document to suggest that the vehicle was being driven by an authorized person. In view of the stand taken by the Insurance Company, adverse inference is being drawn against the owner to the effect that the offending vehicle was being driven by a person, who was not having any valid licence. Thus, there was violation of the condition of the insurance policy, so the Insurance Company is at liberty to recover the amount of compensation from the owner of the vehicle, after paying the amount of compensation to the claimants.

10. Further, from the aforesaid judgment , I find that the Tribunal has kept the issue of violation of the terms of policy open. The opinion of the Tribunal is that the Insurance Company should file a separate suit, wherein, it can be adjudicated as to whether there was violation of condition of the insurance policy. This approach of the Tribunal is also not proper. When the issue has been framed as to whether the condition of the insurance policy has been violated or not, the Court/Tribunal has to decide the same on merits in the same proceeding. The Court/Tribunal cannot direct to file a fresh suit for determining the aforesaid issue. The Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan and Others reported in (2004) 13 SCC 224 in para 8 has held as under:-

"8. Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur Case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondent claimants within three months form today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned 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. ................. "

Thus, for the recovery of the amount from the owner of the vehicle, the Insurance Company need not file a separate suit. It may initiate a proceeding before the Executing Court concerned 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.

11. In that view, the Insurance Company will be at liberty to proceed for recovery of compensation amount initiating an execution case. This appeal is, thus, allowed only to the aforementioned extent.

(ANANDA SEN, J.) High Court of Jharkhand at Ranchi.

Dated: 29.11.2021.

Anu/NAFR C.P.-2.