GAYANTI DEVI Vs. RAJESHWAR PRASAD YADAV AND ORS.

JUDGEMENT

(1.) This appeal is directed against the judgment/award dated 17.08.2010 passed by learned District Judge cum Motor Accident Claim Tribunal, Garhwa in M.V. Case No. 17 of 2009 whereby the respondent-owner of the offending vehicle was directed to pay the balance amount of Rs. 50, 000/- (Fifty Thousand) to the Claimants/Respondent no. 1 or 2 within a month, failing which the owner shall be liable to pay interest @ 6% per annum from the date of the order till its realisation and ordered the appellant to return Rs. 50,000/- to the Insurance Company.

(2.) The brief facts of the case is that Pankaj Yadav aged about 8 years died on account of accident involving Truck bearing registration no. JH0-3A-4538, for which Meral P.S. Case no. 20 of 2008 was registered under sections 279/304 of the Indian Penal Code against one namely, Jitendra Yadav who is alleged to be Khalasi of the vehicle which was insured by respondent no. 3- The New India Assurance Co. Ltd.

(3.) Learned counsel for the appellant has submitted that the impugned order/judgment/award has been passed against the provisions of law and without considering and appreciating the material on record. That the trial court has failed to consider the claim application is bad for non-joinder of the driver of the vehicle namely, Jitendra Yadav, who is a necessary party. That the court below failed to consider that the insurance company i.e. respondent no. 3 did not lead any evidence on the point that the driver of the vehicle did not have a valid driving licence and mere pleading is no substitute of proof. That the learned tribunal should have considered the insurance policy and the copy of registration of the vehicle which are sufficient to exonerate the owner-appellant of the liability and the liability should have been fastened on respondent no. 3- The New India Assurance Co. Ltd. That the appellant-owner had satisfied herself regarding the driving skill of the driver and had also examined the licence. That the witnesses namely, P.Ws.-1, 2, 3 and 4 have stated that the truck was being driven by said Jitendra Yadav and the onus was on the insurance company to prove that he did not have a valid driving licence. Thus, in view of the decision in the case of Lal Chand v. Oriental Insurance Company Ltd., 2006 4 JCR 80, the insurer cannot be absolved of his liability and the burden was on the insurance company to show that the driver did not have a valid driving licence. In support of his contention, he has relied upon decision in the case of National Insurance Company v. Smt. Abha Sinha & Ors, 2002 3 JCR 33.