DIPAK BHOWMIK Vs. TAKHELMAYUM SINGH

JUDGEMENT

(1.) This is an appeal against the Judgment and Award dated 6.12.94 of the learned Member, Motor Accident Claims Tribunal, Kamrup, in MAC Case No. 58(K)/90.

(2.) The appellant filed MAC Case No. 58(K)/90 before the aforesaid Tribunal. His case before the Tribunal was that on 6.9.89 at about 6.15 A.M. while he was proceeding from Guwahati towards Jagiroad on his newly purchased Bajaj Scooter No. MLA 222 A, he stopped on the left side to offer Pranam and the TATA Truck No. MNA 2556 came in a very high speed and dashed the scooter. In the aforesaid accident, he and the pillion rider were thrown away and he sustained grievous head injuries and fracture on his right hand and his scooter was also damaged. The appellant accordingly claimed a compensation of Rs.3.60 lakhs for loss of earning capacity for 30 years, Rs.50,000/- as medical expenses, Rs.30,000/- for future medical expenses, Rs.10,000/- for damage to his scooter and Rs.12,000/- under Section 140 of the Motor Vehicle Act. The owner of the truck, the respondent No.1 in this appeal, filed written statement/objection stating, inter alia, that his truck bearing registration No. MNA 2556 which was involved in the accident on 6.9.89 was insured with the New India Assurance Company Ltd. under its Policy No. 3151010053119 and the effective period of the said policy was; 21.12.88 to 20.12.89. The New India Assurance Company Ltd., respondent No. 2 in this appeal, also filed written statement, before the Tribunal and in paragraph 9 of the said written statement, the respondent No. 2, has stated that the registration certificate, road permit, driving licence of the driver, etc. may be directed to be produced and proved in this case failing which it shall be presumed that there is statutory violation of the conditions of the Insurance Policy, if any, as contemplated under the Motor Vehicles Act, and the Insurance Company was not as such bound in law to indemnify the awarded amount of compensation, if at all, in future. The Tribunal awarded an amount of compensation of Rs. 1.43 lakhs with 10% interest from the date of filing the claim petition till payment is made to the appellant but directed the owner of the tuck to deposit awarded amount within a period of one month failing which 15% interest would accrue from the date till realization of the awarded amount. This direction was given by the Tribunal while holding in answer to the issue No. 7 that a presumption has to be drawn that the driver who drove the truck at the time of the accident had no valid licence. The relevant findings of the Tribunal in the impugned Judgment and Award in this regard are as follows :

(3.) Mr. Bhowmik, learned counsel for the appellant, submitted that onus lies on the Insurance Company to prove that the driver of the offending truck, which was insured, did not have any valid driving licence and the Insurance Company, respondent No. 2, did not discharge its onus by adducing evidence before the Tribunal to prove that the driver who drove the truck on the date of accident did not have any valid licence. He stated that after filing the written statement, the Insurance Company in fact did not lead any evidence before the Tribunal. It appears from the order sheet that the Insurance Company, respondent No. 2, was served with notice as per the report of the Process Server and yet the respondent No.2 has not appeared before this Court. The Court, therefore, has to proceed to dispose of the appeal in the absence of the respondent No.2.