Oriental Insurance Company Ltd vs Mohan Joshi & Others
2022 Latest Caselaw 2335 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                    Appeal from Order No.69 of 2018

Oriental Insurance Company Ltd                          ...Appellant
                                         Vs.

Mohan Joshi & others                                .....Respondents

Mr. Deepak Rawat, Advocate for the appellant. Mr. Manoj Joshi, Advocate, for respondents.

Hon'ble Sharad Kumar Sharma, J (Oral)

The present appeal from order, which has been preferred by the Insurance Company, they are putting a challenge to the impugned award dated 23.112017, as it has been rendered by the learned Motor Accident Claims Tribunal/District Judge, Nainital in MACP No.116 of 2011, "Mohan Joshi Vs. Smt. Rajni Kapoor and others", as a consequence of the culmination of the impugned award, an award of Rs.2,01,391/- has been awarded to the claimants, as a consequence of the injuries, which was suffered by him in an accident, which has chanced, on 12th April, 2010.

2. The brief facts of the case are that, it was the case of the claimants in their claim petition, that on the ill fated day i.e. 12th April, 2010, when he was moving around with his friend Mr. Ramesh Pandey, at Mangalparao, Haldwani, Nainital, and was about to reach near Mandi, he was walking by the left side of the road, when all of a sudden a vehicle i.e. Bus bearing Registration No.UP01 3608, which was alleged to have been driven negligently and rashly; by the Driver of the vehicle, had dashed against him, resulting into the grievous injuries, which was suffered by the claimant resulting into causing fracture in his rib cage bone. He

submits, that on suffering of the injuries, and looking to its seriousness he was immediately taken to Soban Singh Jeena Base Hospital, and looking to his serious condition, he was referred for treatment to Sushila Tiwari Medical College, and thereafter to Sai Hospital and thereafter even to Batra Hospital, Delhi. He submits that he remained hospitalized for sufficient long time, and got his treatment and as a consequence of which the expenditure which was incurred by him in the treatment, at the different hospitals, referred thereto, he would be entitled for the grant of claim by way of compensation to the tune of Rs.13,25,000/-, as it was claimed by him in the claim petition.

3. The opposite party no.1 i.e. the owner of the vehicle, had contested the proceedings by way of filing a written statement, and has submitted that on the date of the accident i.e. 12th April, 2010, the vehicle was being plied with all legally valid documents, and hence, the liability, if any, if it was to be fastened, it was to be fastened on the Insurance Company, because the vehicle was duly insured with the appellant/Insurance Company, and at the relevant point of time, when the accident has chanced, the insurance cover was still prevailing for the offending vehicle.

4. While on the other hand, the driver of the vehicle had filed an independent written statement, and he has submitted, that it was rather the claimant, who has negligent while walking around the road side and there was no negligence driving by him. He submits that on the date of the accident, the vehicle was duly insured with the Insurance Company, and he was driving the vehicle with the valid

driving licence, and no liability could be fastened upon the owner or the driver of the vehicle, as such.

5. The Insurance Company did contested the proceedings by way of filing the written statement, and apart from the fact that, the factum of the accident stood admitted by them, the Insurance Company didn't led any evidence, to the contrary that on the date of the accident, the vehicle was not being validly insured with them. The learned Motor Accident Claims Tribunal, had framed the issues, which are extracted hereunder:-

"1. Whether an accident took place on 12.4.2010 at about 9:30p.m. Nearby Abdulla Building, Bareilly Road Haldwani due to rash and negligent driving of the driver of Bus bearing registration No.U.P.01-3608 which hit the pedestrian / claimant Mohan Joshi causing grievous injuries to him; if so, its effects?

2. Whether the said accident was not occurred by the aforesaid Bus as alleged in Para-12 of the written statement of respondent no.2?

3. Whether on the date of accident, the owner of the aforesaid Bus was having valid and effective R.C., insurance policy cover note, fitness, permit, tax payment receipt etc. of the alleged Bus; if so, its effect?

4. Whether on the date of alleged accident the driver of the aforesaid Bus was having valid and effective driving licence; if so, its effect?

5. Whether the claimant is entitled to any compensation, if so, to what extent and from whom."

6. The respective parties to the proceedings led their evidence, both oral and documentary, and particularly, the claimants had adduced the witnesses of PW 1 and PW 2, who were the eye witnesses of the accident, and had also examined PW 3 i.e. Dr. Aditya Mongia, who had attended upon him, when he was under a medical treatment, in adducing the documentary evidences towards the quantum of

the expenditure which was incurred by him in undertaking the treatment. They have placed on record the prescriptions, the discharge summary report, inquiry reports, the disability certificate, by way of paper document which were placed on record by list 7(ga), and paper no.68(ga).

7. The opposite party no.2 i.e. owner of the vehicle had examined himself as DW1, and had placed before the court below, the insurance policy by way of paper no.21(ga), and the Driver has produced his Driving Licence i.e. paper no.83(ga)/1, but so far as the Insurance Company i.e. appellant is concerned, they have not adduced any evidence, as such to substantiate their stand but rather had submitted that on the date of the accident the Driver of the Vehicle, who was driving the vehicle was not having a valid driving licence or the vehicle was being driven in contravention to the terms of the driving licence, which was available with him.

8. Consequently, the learned Motor Accident Claims Tribunal, in view of the findings which had been recorded, while dealing with the issues, it is not in dispute that the factum of accident on 12th April, 2010, stood established and owing to the evidence, which was adduced by the claimants both oral and documentary, the nature of the injuries and the amount of the expenditure which was incurred by him, was also established by an appreciation of evidence made by the court in paragraph no.18, of the award as it was rendered by the court below, whereby quantifying the amount of the investment made by the claimant as to be Rs.1,41,391/-. So far as the Insurance Company is concerned, the only case of

the Insurance Company was that the Driver couldn't be said to have been driving the vehicle with the valid driving licence for the reason, being that the vehicle was being driven in contravention to the terms and conditions contained in the Driving Licence, but surprisingly the findings, which has been recorded on Issue Nos.3 and 4, which related to the determination of the quantum of compensation, and with regards to, as to whether on the date of the accident the vehicle was being plied with the valid documents or not, it has been observed by the learned Motor Accident Claims Tribunal, that no efforts whatsoever was made by the Insurance Company by producing any documentary evidence, to fortify the stand taken by them with regards to the validity of the driving licence, with which the driver of the vehicle was plying the vehicle.

9. In that eventuality, when the Insurance Company had not discharged its responsibility and the burden of proof to controvert the defence taken by the owner and driver of the vehicle, then in that eventuality at an appellate stage, they cannot be permitted to contend that the vehicle on the date of the accident was not being driven under a valid driving licence, in the absence of there being any contrary finding sought to be observed by the Motor Accident Claims Tribunal, while rendering the impugned award and that too based on their evidence, adduced by them, which was under challenged before this Court.

10. The learned Motor Accident Claims Tribunal, while quantifying the amount of compensation, as already observed above, and considering the fact that the claimant

did suffered serious injuries, and has invested a lot for undertaking his medical treatment, the Tribunal has classified the different heads under which the compensation was determined to be made payable in paragraph no.32, of the judgment, as medical expenses of Rs.1,41,391/-, and other expenditures, which has been classified, therein, in the findings recorded by the learned Motor Accident Claims Tribunal.

11. The argument, which has been extended by the learned counsel for the appellant pertaining to the validity of the driving licence and the conditions contained, therein, whether it controverted the terms of the policy under which the offending vehicle was registered, was a burden which was in fact required to be discharged by the Insurance Company itself by placing evidences on record which they failed, and also by taking the specific pleadings in the written statement, which was submitted by them before the learned Motor Accident Claims Tribunal, while denying the contention raised by the claimant in the claim petition. Even the written statement, which was taken by them before the learned court below as brought on record of the present appeal from order, i.e. Annexure No.2, do not at any point of time, observed and pleads, that the driver of the vehicle was not having a valid driving licence, rather the burden was shifted upon, that it was rather the responsibility of the Insurance Company, which was liable to produce the driving licence, of the driver of the vehicle, which was involved in the commission of the accident, due to his negligent driving. In view of the case that the appellant has not discharges its burden of proof, of the vehicle being plied in contravention to the terms of the insurance policy or in terms of the driving

licence, at the appellate stage, the appellant cannot be permitted to take a stand, that the driver of the offending vehicle, was not having the valid driving licence, which could have shifted upon the burden of payment of the liability of compensation upon the owner of the vehicle.

12. In view of the aforesaid fact, the appellant cannot be permitted to take the advantage of its own inability to establish his case to the contrary before the tribunal below, in view of what has been observed above, this Court doesn't find any apparent anomaly in the award rendered by the learned Motor Accident Claims Tribunal.

13. Hence, the appeal from order as preferred by the Insurance Company lacks merit, and the same is dismissed. After having said so, the Registry is directed to remit the statutory deposit made by the Insurance Company, to the learned Motor Accident Claims Tribunal, which in turn would be remitted to the claimants of MACP No.116 of 2011, "Mohan Joshi Vs. Smt. Rajni Kapoor and others".

(Sharad Kumar Sharma, J.) 28.07.2022 NR/