YOGESH Vs. ROOP KANWAR

JUDGEMENT

(1.) THIS miscellaneous appeal filed by the owner of the defaulting vehicle is directed against the judgment and award dated 26. 05. 2001 passed by the Motor Accident Claims Tribunal, Udaipur (for short, referred to hereinafter as `the Tribunal') whereby the Tribunal awarded a sum of Rs. 1,63,000/- by way of compensation in favour of the claimant-respondents holding the appellant (herein) liable for payment of the entire sum of compensation.

(2.) THE challenge to the award impugned in these proceedings by the appellant is manifestly directed against the respondent No. 7 National Insurance Company, the insurer. THE appellant has prayed that the claim petition filed by the respondents No. 1 to 6 may be dismissed with costs or in the alternative, the Insurance Company, may also be held liable for making payment of the compensation. THE entire contentions raised by the appellant center upon the sole question as to liability for payment of the amount of compensation awarded by the Tribunal. THE appellant has throughout striven to show that the insurance company is to be held liable for the payment of the amount of compensation nd under the certificate of insurance the insurer ought not t have been exonerated from the liability. thus, in effect, law not the facts is relevant to the present controversy at this appellate stage when, in this background, this Court does not have any occasion to look into an apparent perversity on appreciation of the facts.

(3.) LAW of evidence is very clear in this respect. It says that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This the onus of proving the fact pleaded in the objections raised by the insurance company squarely lay upon it and at no stage or in no manner it would shift by hook the crook. The law does not permit drawing an adverse inference if the owner or driver failed to produce the driving licence in response to notices issued to them by the insurance company. The governing principle is that who would fail if no evidence at all were given on either side. This principle is reflected in the judgment of the Hon'ble Supreme Court in Narchinva Kamat vs. Alfredo Antonio Doe Martins Unless it is established on the material on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-Section (1) of Section 96 of the Motor Vehicles Act. When the insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance and if the breach of a term of contract permits a party to the contract not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract; and, the test in such a situation would be that who would fail if no evidence is led. The Hon'ble Supreme Court in Narchinva Kamat & Another vs. Alfredo Antonio Doe Martins & Others (supra) while deciding the liability of the insurance company, clarified the situation in the following terms: " The burden to prove that there was breach of the contract of insurance was squarely company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R. T. A. which issues the driving licence keeps a record of the licence issued and renewed by it. The insurance company could have got the evidence produced the substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company. "