HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 75 of 2000 New India Assurance Company Ltd. Petitioner V/S Mst. Neelam Goyal and Anr Respondents ! Shri R.K. Gupta, Advocate for Petitioner. ^ Shri M.P. Sharma, Advocate for Respondents. Coram : HON'BLE MR. JUSTICE J.P. SINGH Dated : 01/12/2005 : JUDGMENT :
New India Assurance Company Limited is in appeal against judgment dated 29-3-2000 of Motor
Accidents Claims Tribunal, Jammu, in four appeals, preferred against award delivered in Claim
Petitions, File Nos.586, 587, 588 and 589.
Shri R.K. Gupta, learned counsel for the Insurance Company has questioned the award of Motor
Accidents Claims Tribunal, Jammu, only in so far as it decides Issues No.4 and 5 against the
Insurance Company.
Shri Gupta relies on National Insurance Co. Ltd., New Delhi v. Jugal Kishore and others,
reported as AIR 1988 SC 719 and National Insurance Company Ltd. v. V. Velammal and
others, reported as AIR 2000 Madras 476, to urge that the Tribunal has erred in rejecting the
evidence produced by the Insurance Company to prove that S. Nihal Singh S/o S. Sardara Singh,
the driver of the vehicle, who happens to be the owner too of the vehicle, was not holding a valid
driving licence at the time of accident. He submits that onus of proof of an Issue becomes
irrelevant after the parties are put to proof and disproof of the Issue. Learned counsel submits that
facts within the exclusive knowledge of a party, if not placed on records, would raise a
presumption that if the facts had been placed on records, this would prove to the detriment of the
party, who withholds such facts from the scrutiny of the Court. While elaborating his
submissions, learned counsel submits that a specific plea was raised by the Insurance Company
during the currency of the trial of the Claim Petitions that the driver of the vehicle, did not hold a
valid driving licence, which plea of the Insurance Company was reflected by the Tribunal in one
of the issues framed by it on 24-8-1994.
The fact as to whether or not the driver of the vehicle was holding a valid driving licence, was
very much within the knowledge of the driver as also of the owner. Both the driver as also the
owner was, thus, required to either produce a valid driving licence before the Tribunal to disprove
the plea raised by the Insurance Company or produce such evidence which could prove that the
driver of the vehicle was holding a valid driving licence at the time of the accident. Learned
counsel submits that Tribunal has erred in appreciating evidence in accordance with law
propounded by Hon’ble Supreme Court of India.
Shri R.K. Bhatia, learned counsel representing S/Shri Jasvir Singh and Avtar Singh, legal
representatives of the deceased respondent Nihal Singh, driver and owner of vehicle No.PUU-
4111, has, in reply, submitted that the Insurance Company has failed to produce requisite
evidence to demonstrate that the driver of the vehicle, did not hold a valid driving licence at the
time of the accident. He submits that reliance of the Insurance Company on the photostat copy of
the driving licence and collection of proof in regard thereto, regarding its being fake, and not
issued by the competent Licensing Authority, in this behalf, cannot be taken into consideration in
the absence of any proof of retention of the envelope, which is alleged to have been sent by the
driver of the vehicle to the Insurance Company, for verification. Learned counsel further submits
that apart from the records of the Licensing Authority, which have been produced by the
Insurance Company in the present case, there were two other Licensing Authorities in the region,
whose records have not been produced by the Insurance Company and in that view of the matter,
in the absence of records of such Licensing Authorities, it cannot be said that the Insurance
Company had successfully proved the licence to be fake.
I have considered the submissions of learned counsel for the parties. I have gone through the
statements of the witnesses produced by the Insurance Company as also the discussion of learned
Presiding Officer of the Motor Accidents Claims Tribunal, Jammu, on the issue.
Before dealing with the question raised by Shri Gupta, it would be advantageous to refer to
Section 169 of the Motor Vehicles Act 1988 and Rule 324 of the Jammu and Kashmir Motor
Vehicle Rules, 1991.
Section 169 “Procedure and powers of Claims Tribunals.(1) In Holding any
inquiry under Sec. 168, the Claims Tribunal may, subject to any rules that
may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the
purpose of taking evidence on oath and of enforcing the attendance of
witnesses and of compelling the discovery and production of documents
and material objects and for such other purposes as may be prescribed; and
the Claims Tribunals shall be deemed to be a Civil Court for all the
purposes of Sec. 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal
may, for the purpose of adjudicating upon any claim for compensation,
choose one or more persons possessing special knowledge of any matter
relevant to the inquiry to assist it in holding the inquiry.”
Rule 324 “Power vested in civil court which may be exercised by Claims
Tribunal:- (1) Without prejudice to the provisions of Section 169:-
(a) every Claims Tribunal may exercise all or any of the powers vested
in a civil court under the following provisions of the J&K Code of Civil
Procedure, Svt. 1977 (Act of 1977) in so far as they may be applicable,
namely:-
Sections 30, 32, 34, 35, 35 (a) and (c), 76, 77, 94, 95, 132, 133, 144, 145,
147, 148, 149, 151, 152 and 153:
(b) subject to the provisions of Section 174:-
(i) if any Claims Tribunal constituted for any Division where the
amount of compensation awarded by it does not exceed twenty-five
thousand rupees shall have all the powers of Civil Court, and where such
amount exceeds the said sum shall have all the powers of the High court,
for the purpose of execution of the award if the award is a decree for the
payment of money made in suit by City Civil Court or the High Court, as
the case may be;
(ii) for the purpose, other than those specified in sub-rule (1), the
Claims Tribunal may exercise all or any of the powers of a Civil Court as
may be, necessary in any case for discharging its functions under the Act
and the rules made thereunder.”
Reading of Section and Rule (supra), makes it explicitly clear that Motor Accidents Claims
Tribunal, has all the powers of a Civil Court for the purpose of taking evidence on oath and
purposes akin thereto.
As a corollary, the Tribunal is required to appreciate evidence, in the same fashion, as a Civil
Court does. It, in other words, means that the decision of an Issue before a Tribunal, would, inter
alia, be on the basis of preponderance of probabilities.
Onus of proof in civil cases may, thus, lose importance when the parties are put to proof or
disproof of an Issue in question. Evidence led by a party, on whom the initial onus of proof lies,
would, thus, govern the shifting of onus of proof on to the opposite party if on the basis of
preponderance of probabilities, it may be held that the party on whom the initial onus of proof
was placed, had successfully discharged its onus of proof.
It would be advantageous, at this stage, to refer to what has been held by Hon’ble Supreme Court
of India in National Insurance Co. Ltd., New Delhi v. Jugal Kishore, reported as AIR 1988 SC
719.
“10. Before parting with the case, we consider it necessary to refer to the attitude often
adopted by the Insurance Companies, as was adopted even in this case, of not filing a
copy of the policy before the Tribunal and even before the High Court in appeal. In this
connection what is of significance is that the claimants for compensation under the Act
are invariably not possessed of either the policy or a copy thereof. This Court has
consistently emphasized that it is the duty of the party which is in possession of a
document which would be helpful in doing justice in the cause to produce the said
document and such party should not be permitted to take shelter behind the abstract
doctrine of burden of proof. This duty is greater in the case of instrumentalities of the
State such as the appellant who are under an obligation to act fairly. In many cases even
the owner of the vehicle for reasons known to him does not choose to produce the policy
or a copy thereof. We accordingly wish to emphasise that all such cases where the
Insurance Company concerned wishes to take a defence in claim petition that its liability
is not in excess of the statutory liability it should file a copy of the insurance policy along
with its defence. Even in the instant case had it been done so at the appropriate stage
necessity of approaching this Court in Civil Appeal would in all probability have been
avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but
also helps the Court in doing justice between the parties. The obligation on the pat of the
State or its instrumentalities to act fairly can never be over-emphasised.”
The issue in question, i.e., Issue No.4 was, thus, required to be considered by the Tribunal, on the
lines indicated hereinabove. I will now proceed to consider as to whether or not the Issue has
been dealt with according to law by the learned Presiding Officer of Motor Accidents Claims
Tribunal, Jammu.
The Appellant-Insurance Company produced Lt. Col. Charanjit, who had been appointed by it to
investigate the matter, particularly as to the genuineness of licence alleged to have been possessed
by S. Nihal Singh. This witness has testified regarding his investigation in the matter and coming
to the conclusion that licence, said to have been possessed and issued in favour of Nihal Singh,
was fake. The witness had addressed a communication to Nihal Singh to produce his driving
licence for the purpose of verification, in answer whereto, Nihal Singh sent a photocopy of the
licence, which on verification from the concerned Licensing Authority, which was alleged to
have issued the licence, was found to be fake. Ajay Kumar Dogra, Surveyor, another witness of
the Insurance Company, had approached the concerned Licensing Authority to verify authenticity
of the licence. The Licensing Authority certified that no such licence, as is alleged to have been
issued to Nihal Singh, had been so issued by the Licensing Authority. Certificates issued by the
Licensing Authorities have been proved by this witness. Appellant did not rest here. It produced
yet another witness, namely, Vipan Kumar, General Clerk, SDM, Hamirpur, as its witness. This
witness states that SDM, Hamirpur, is the Licensing Authority under Motor Vehicles Act. He
says that he has been posted as General Clerk with the Licensing Authority, Hamirpur. Register
regarding issuance of Driving Licences was brought by him before the Tribunal and according to
the Register, the licence of S. Nihal Singh, bearing Driving Licence No.6854/H was not found to
have been so issued in the name of S. Nihal Singh. He further says that no licence in name of S.
Nihal Singh has been issued on 8-1-1985 too. He further testifies that Ajay Kumar, witness, had
submitted an application to the Licensing Authority on 22nd January, 1996 and sought
verification regarding the issuance of Licence No.6854/H. Certificate issued in this behalf by the
Licensing Authority, certifying that no such licence has been issued by it, has been admitted by
him to be correct. This witness has further testified that Licence No.6854/H is recorded to have
been renewed and issued in the name of one Kuldeep Singh S/o Beli Ram on 27th November,
1984. The only thing, which could be elicited from the cross-examination of this witness, is that
apart from Licensing Authority, Hamirpur, there are two other Licensing Authorities in Hamirpur
Division, which are functioning as Registering and Licensing Authority, Bursar, and Registering
and Licensing Authority, Nadaun.
I have considered the evidence of this witness and I am of the opinion that the Insurance
Company has successfully discharged its initial onus of proof on the basis of preponderance of
probabilities. It was now open to the driver or owner of the vehicle to disprove the facts brought
on records by the Insurance Company.
The driver/owner of the vehicle has, however, opted to maintain silence in the matter. Neither any
evidence was produced nor had the owner or driver of the vehicle, appeared in the witness box to
rebut the evidence led by the Insurance Company or even assert on oath that the driver of the
vehicle, did hold a valid driving licence at the time when the vehicle met with an accident.
Facts, which were exclusively in the knowledge of the owner and driver of the vehicle, were not,
thus, placed on records to rebut the case set up by the Insurance Company that the driver of the
vehicle did not hold a valid driving licence. Much is sought to be made by the owner from the
statement of Shri Vipan Kumar, General Clerk, Licensing Authority, Hamirpur, when the witness
informed the Tribunal that there are three Licensing Authorities in the Hamirpur Division.
Existence of other two Licensing Authorities in Hamirpur Division does not, in any way, weaken
the case set up by the Insurance Company because these Licensing Authorities, according to the
statement of the witness, have specifically been named as Licensing Authority Bursar, and
Licensing Authority, Nadaun. These Authorities carry different nomenclature than the
nomenclature of the main Licensing Authority, i.e., Licensing Authority, Hamirpur. No benefit,
thus, could be derived by the owner because of there being three Licensing Authorities in
Hamirpur Division.
Plea of Shri Bhatia that in the absence of records of other two Licensing Authorities, it cannot be
held that the Insurance Company had discharged the onus of proof of Issue which lay heavily on
it, is without merit. A party supposed to be possessed of a document and in the present case, an
important document like driving license, on the basis whereof, a driver gets right to drive a
vehicle, having not been produced before the Tribunal for its examination, deprives the
owner/driver of the vehicle to urge that the driver did hold a valid driving licence at the time of
the accident. Shri Bhatia submitted that provisions of the Evidence Act, do not apply to
proceedings under Motor Accidents Claims Tribunal and in that view of the matter, onus of
proof, cannot be shifted on to the driver.
I am not impressed with this submission of Shri Bhatia. Even if one were to hold that Evidence
Act is not, as such, applicable to the proceedings before Motor Accidents Claims Tribunal, yet it
cannot be conceived that principles underlying various provisions of the Evidence Act, which are
based on CASUS CONSCIENTIAE and fair play, cannot be ignored in proceedings before a
Motor Accidents Claims Tribunal.
Section 169 of the Motor Vehicles Act, 1988 and Rule 324 of the J&K Motor Vehicle Rules,
1991, provide the status of a Civil Court to the Motor Accidents Claims Tribunal. The Act and
the Rule (supra) supply powers of a Civil Court to the Tribunal in adjudicating claims under the
Act. Adjudication, in terms of Section 168 of the Act, would require decision on rival contentions
of the parties. Adjudication may, thus, depend on affidavit, documentary or oral evidence. In such
cases, therefore, principles underlying various provisions of the Evidence Act, cannot be given a
go-bye, though strict application of the Evidence Act may not be desirable. In nutshell,
adjudication of a cause has to be on the preponderance of probabilities on the basis of material or
evidence, be that evidence on affidavit, documentary or oral evidence produced or adduced by the
parties in a cause before a Claims Tribunal. A party to a litigation, who is under law entitled to
the possession of a document cannot, thus, be permitted to avoid placing such documents before
the Tribunal, so as to resolve an Issue pending before it, particularly when the existence,
authenticity or validity of such document is in question. Silence on the part of such party in the
matter, coupled with his omission to produce such documents, cannot be countenanced except on
justifiable grounds supporting such non-production. Non-production of evidence or documents by
such party would entail adverse inference against such party.
Motor Accidents Claims Tribunal, Jammu, has, thus, erred in deciding Issue No.4 against the
Appellant-Insurance Company.
Finding on this issue is, therefore, reversed. Consequently, finding on Issue No.5 is modified. The
amount awarded by the Tribunal is held recoverable from the legal representatives [Jasvir Singh
and Avtar Singh, both sons of Late Nihal Singh, R/o V.P.O. Dala, District Moga (Punjab)] of the
driver and owner of motor vehicle, i.e., deceased respondent Nihal Singh.
I am conscious of the fact that Chapter XII of the Motor Vehicles Act, indicates welfare
legislation, intended for speedy adjudication of disputes and realization of compensation, arising
out of the use of the motor vehicles, by the claimants. Recovery of amount of compensation by
the claimants from the owner and driver of the vehicle, is likely to take some time. The case is
already delayed and claimants deprived of their due compensation. In these circumstances, any
delay in payment of amount of compensation to the claimants, would aggravate their agony.
In these circumstances, I deem it proper and just to direct that the Appellant-Insurance Company
shall deposit awarded amount along with interest @ 12% accrued thereon till date, in this Court in
the appeals, within a period of one week, which, when so deposited, shall be released in favour of
the claimants by Registrar Judicial of this Court, on proper identification. At the same time, I
consider it appropriate to direct that the amount paid by the Appellant-Insurance Company to the
claimants in terms of this order, shall be recoverable by the Appellant-Insurance Company from
the legal representatives of deceased respondent Nihal Singh and the properties, both moveable
and immoveable, left by deceased Nihal Singh, alongwith interest @ 12% per annum on the
amount, which has been ordered to be released in favour of the claimants till the amount is
recovered by the Appellant-Insurance Company from the legal representatives of deceased Nihal
Singh. The Tribunal, as and when approached by the Insurance Company in this behalf, shall
expedite the recovery of amount, which has been ordered to be paid to the Claimants, from the
legal representatives and properties left by deceased S. Nihal Singh.
Finding of Motor Accidents Claims Tribunal, Jammu, on Issue No.5 is accordingly modified.
This appeal is allowed in the terms indicated hereinabove.
A copy of this judgment shall be placed on the connected files, being CIMA No.76/2000,
CIMA No.77/2000 and CIMA No.78/2000, which shall stand disposed of alongwith connected
CMPs in all these CIMAs, in terms of this judgment.
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