ANIL KUMAR Vs. RAM SARUP

JUDGEMENT

(1.) IN all these 4 cases, the claims for compensation were awarded only against the owner on the ground that the driver of the offending vehicle was not shown to have a valid driving licence. At the trial, the driver and the owner remained ex parte and, therefore, the Tribunal made an observation that the claimants had not shown that the driver had a valid driving licence to make the insurer liable.

(2.) THE burden of proof has been wrongly cast by the Tribunal. The plea of non -liability by an insurer for alleged violation of terms of policy that would include a defence that the driver did not have a valid driving licence shall be proved only by the insurer. The claimant is not expected to do any more than bring in his petition all parties who are necessary. The insured was a necessary party and there was a duty for the insurer to secure what the statute expressly provides for. Section 133 of the Motor Vehicles Act casts a duty on the driver of a motor vehicle to give information about the vehicle or any information demanded by a public officer. Section 130 also casts a duty on the driver of a motor vehicle to produce a licence and certificate of registration on demand by any police officer. The Insurance Company must have therefore taken steps to summon the owner or the driver at the trial, no matter that they remained ex parte, for, the burden of proof was always on the insurer to show that there was a breach of terms of policy. If the Insurance Company did not take any step to produce the evidence, there cannot be a matter of inference that the driver did not have a valid driving licence. The Insurance Company ought to have been made liable for its failure to discharge the burden which was heavy on it.

(3.) I have examined the manner of disposal in all these cases and I find that the Tribunal has assessed the compensation correctly under the relevant heads. In FAO No.821 of 1996, the Tribunal has assessed Rs. 54,000/ - that includes loss of earning of Rs. 24,000/ -, Rs. 20,000/ - towards medicines and other expenses and Rs. 10,000/ - for pain and suffering. In FAO No.822 of 1996, the Tribunal has taken note of the fact that although he was on leave for nearly 13 months, he had been monetarily deprived of his income only for a period of 5 months and had provided for loss to the extent of Rs. 42,500/ -. Considering the fact that there were fractures at two sides, namely, on the shoulder and at his leg and prolonged hospitalization, the Tribunal had assessed Rs. 50,000/ - for pain and suffering, besides providing Rs. 66,000/ - for medicines and other expenses. In FAO No.823 of 1996, the amount assessed was Rs. 15,000/ - that included Rs. 7,500/ - for pain and suffering and Rs. 73,500/ - for medicines, special diet and transportation. This was also a case where there was no particular disability that was established. In yet another case in FAO No.988 of 1996, no evidence at all had been given since the claim was filed by a foreign national, who did not choose to appear before the trial to produce proof of his physical condition or give any evidence with reference to the injury suffered by him. The document had been filed in court through counsel but so long as the Tribunal undertakes a judicial exercise, there ought to be some evidence in the manner that the law allows for. The copies of documents produced by a person from foreign country hardly affords such a proof. I will not, therefore, find any fault with the Tribunal in dismissing the application.