NATIONAL INSURANCE COMPANY LTD. Vs. RAM SWAROOP YADAV

JUDGEMENT

(1.) Heard the parties. Interlocutory Application i.e. I.A. No. 2440 of 2011 has been filed under Section 5 of the Limitation Act with a prayer to condone delay in filing the appeal. Twenty-five days delay has occurred. After hearing the parties and considering the ground set forth in Interlocutory Application i.e. I.A. No. 2440 of 2011, the petition stands allowed and delay in filing the appeal stands condoned. The present appeal has been preferred under Section 173 of the Motor Vehicles Act against judgment dated 18th March, 2010 and award dated 19.5.2010 passed in Motor Vehicle Accident Claim Case No. 12 of 2006/7 of 2009 passed by 4th Additional District and Sessions Judge-cum-Motor Accident Claims Tribunal, Nawadah. By the said judgment the appellant has been directed to make payment of compensation amount of Rs. 1,20,000 along with 6% interest from the date of filing of the claim petition after adjusting Rs. 50,000 which was paid under Section 140 of the Motor Vehicles Act as interim compensation.

(2.) Short fact of the case is that the respondent Nos. 2, 3 had filed a claim case before the Court below claiming compensation due to death of Mahadeo Yadav @ Mahadeo Prasad Yadav, father of respondent No. 1 and husband of respondent No. 2, who died in a motor vehicle accident on 30.12.2005. In this case offending vehicle was a Tata Maxi bearing registration No. 13P-6539. Before the Court below in support of the claim case the claimant examined three witnesses and produced number of documents such as copy of F.I.R. in Town P.S. Case No. 402 of 2005 which was marked as Exhibit-1, Post-Mortem Report which was held on the dead body of deceased Mahadeo Yadav @ Mahadeo Prasad Yadav was marked as Exhibit-2, Registration of vehicle as Exhibit - 3, Insurance Policy of the vehicle in question as Exhibit-4, Driving Licence of the Driver as Exhibit-5, permit of the vehicle as Exhibit-6 and inspection report of vehicle as Exhibit-7. In the case issues were framed and after hearing the parties by the impugned judgment the learned Court below allowed the claim case as indicated above.

(3.) Learned Counsel for the appellant has not questioned either the quantum of compensation or other fact mentioned in the impugned order. However, he has seriously raised an objection that in this case neither driver nor owner of the vehicle had filed any show-cause/written statement and they have not brought on record evidence to prove that the vehicle in question was being driven at the relevant time by a driver who was having a valid licence. It was submitted that in absence of owner or driver of the vehicle the learned Court below was not required to record a finding that driver was having a valid driving licence. Mr. Shailendra Kumar, learned Counsel for the appellant in support of his contention has referred to a Single Bench judgment of this Court reported in, The New India Assurance Co. Ltd. v. Most. Lahaso Devi & Ors., 2002 3 PLJR 166 He submits that it was mandatory on the part of the driver and owner to prove that the driver was having valid licence at the relevant time. He submits that while filing written statement the appellant had raised an objection that driver was not having any valid licence and since the appellant had raised an objection onus was on the claimant to demolish the stand of the appellant. Since the objection raised by the appellant was not disputed by the claimant presumption would be that driver of the vehicle was not having licence at the time of accident and as such the appellant-Insurance company cannot be directed to make payment of compensation. It was submitted that it was the owner who was required to make payment of the compensation. On the aforesaid sole ground the learned Counsel for the appellant has questioned the impugned judgment. Learned Counsel for the respondent Nos. 1, 2/claimants 4 has opposed the prayer of the appellant. It was submitted by learned Counsel for respondent Nos. 1, 2/claimants that driving licence was got exhibited as Exhibit-5. According to him since the driving licence was already brought on record and it was got exhibited without any objection, presumption would be that driving licence was valid and as such on the plea of absence of driving licence the judgment impugned may not be interfered with. Besides hearing learned Counsel for the parties I have also perused the materials available on record.