JUDGMENT
1. Heard.
2. This First appeal filed by owner of the vehicle (original opponent No. 1 in Motor Accident Claims Petition No. 53 of 1987) is directed against the order dated 9-2-1990 passed by the Member, Motor Accident Claims Tribunal, Ahmednagar.
3. In brief, the facts giving rise to this first appeal are as under : The accident occurred on 20-8-1986 at about 8.30 p.m. on Kopargaon-Lasalgaon road within the Local limits of village Sawali Vihir near Jamdade Vasti. The injured minor girl Miss Pramila was, at the relevant time, in the bullock cart which was driven by Shankar Karbhari. The tractor owned by the appellant came from behind. At the material time, the respondent No. 2 (original opponent No. 2) was driving the tractor. The driver of the tractor drove the vehicle in a rash and negligent manner. He drove the vehicle in high speed. Because of rash and negligent driving, the tractor gave dash to the bullock cart from behind. Because of sudden impact, minor girl Pramila, aged 12 years, was thrown out of the bullock cart and banged on the surface of the ground. Because of accident, Pramila sustained fracture injuries to left numerous bone, left femur and left tibia. Injured Pramila was taken to the hospital. She was hospitalized as indoor patient for two months. She sustained permanent disability due to fractured limbs. Therefore, she filed Claim Petition No. 53 of 1987 in the Court of Motor Accident Claims Tribunal, Ahmednagar.
4. The owner and driver of the tractor resisted the claim on the ground that the speed of the tractor was moderate. They denied that the tractor gave dash to the bullock cart from behind. It is suggested on behalf of them that Pramila fell from the bullock cart because of her negligence and sustained injuries, for which they are not responsible.
5. The Insurance Company (original opponent No. 3) denied the liability on the ground that the driver of the tractor did not hold valid driving licence and, therefore, on account of breach of condition of policy, the liability cannot be fastened on the Insurance Company.
6. On the above pleadings of the parties, the Motor Accident Claims Tribunal framed issues at Exh. 48, Pramila examined herself Exh. 50, her father Dattoba Exh. 51 and Shankar, driver of the bullock cart Exh. 52. The owner and driver of the tractor did not step in the witness box. However, they examined Dr. Madhukar Deshmukh Exh. 74, the Medical Officer who treated the injured Pramila. After having considered the entire material placed on record, the Motor Accident Claims Tribunal allowed the claim petition and consequently, directed the owner and driver of the tractor to pay Rs. 34,000/-together with interest at the rate of 12% p.a. and proportionate costs. The Motor Accident Claims Tribunal exonerated the Insurance Company on the ground that the driver of tractor had no valid driving licence.
7. Feeling aggrieved by the award passed by the Motor Accident Claims Tribunal, the owner of the tractor has preferred this First Appeal.
8. After having heard the submissions of learned Advocate Shri Katneshwarkar for the appellant and learned Advocate Shri Adkine for respondent No. 1, following points arise for my consideration :
1. Whether the injured claimant proves that the accident occurred on account of rash and negligent driving of tractor No. MHI -5270? …. Yes.
2. Whether the injured claimant proves that due to accident, she sustained fracture injuries? ….. Yes.
3. Whether the respondent No. 3 Insurance Company has proved that the driver of the tractor had no valid driving licence on the date of accident ? ….. No.
4. Whether the Insurance Company is liable to be exonerated? …..No.
5. What order?
…. As per final order.
9. The learned Advocate Shri Katneshwarkar submitted that the evidence brought on record by the injured claimant is not at all sufficient to hold that the driver of the tractor drove the tractor in a rash and negligent manner. According to him, the injured Pramila fell from the bullock cart because of her own negligence and sustained injuries. On the other hand, the learned Advocate Shri Adkine urged that the evidence adduced by the claimant is sufficient to come to the conclusion that it was the driver of the
tractor who was rash and negligent in driving the vehicle and because of his
rash and negligent driving, the accident occurred in which the minor girl
Pramila sustained three fracture injuries.
10. I carefully perused the oral evidence brought on record. Pramila has testified in her evidence that the tractor came from behind and gave dash to the bullock cart. It has further come in her evidence that at the relevant time, head lamps of the tractor were not in a working condition. Shankar, driver of the bullock cart, has furnished full corroboration to the testimony of injured Pramila. It has also come in his evidence that the tractor, which was driven by the driver, came from behind without head lights on and gave dash to the right side wheel of the bullock cart. He has further testified in his evidence that because of the dash of vehicle, Pramila was tossed in the air and fell on the ground. The evidence of Pramila and Shankar would clearly go to establish that the driver of the vehicle was rash and negligent at the material time and because of rash and negligent driving of the driver, accident occurred in which, Pramila sustained fracture injuries. The head lights of the vehicle were not in a working condition at the relevant time. When there was patent defect in the vehicle, the driver was bold enough to drive the vehicle on the public road, that too in the night time. This condition of the vehicle and the conduct of the driver would clearly point out as to how the driver of the tractor was rash and negligent. It is material to note that the owner and driver of the tractor did not step in the witness box. I, therefore, hold that the finding of the Motor Accident Claims Tribunal in this behalf does not suffer from any infirmity. I, therefore, answer point No. 1 in the affirmative.
11. The evidence brought on record would clearly go to show that because of accident, Pramila sustained three fracture injuries. Dr. Madhukar Deshmukh has testified in his evidence Exh. 74 that he examined Pramila on 20-8-1986 and on examination, found following injuries.
1. Fracture to left humerous bone,
2. Fracture to left femur and
3. Fracture to left tibia.
It is clearly seen from the evidence of Dr. Deshmukh Ex. 74 that Pramila sustained three fracture injuries i.e. fractures to left humerous bone, left femur and left tibia. The medical certificate Exh. 63 clearly points out that Pramila had three fracture injuries when she was brought to the hospital. Dr. Madhukar Deshmukh Exh. 74 has in unequivocal terms admitted that because of aforesaid fractures, there was a permanent impairment of fractured limbs. This medical evidence of Dr. Madhukar Deshmukh cannot be discarded. Relying on the evidence of Dr. Madhukar Deshmukh coupled with then oral testimony of Pramila, the Motor Accident Claims Tribunal has rightly concluded that the injured Pramila sustained fracture injuries in the accident, which occurred on 20-8-1986. Accordingly, I answer point No. 2 in the affirmative.
12. The Insurance Company has taken a defence that there was breach of condition of insurance policy and, therefore, liability cannot be imposed on the Insurance Company. In order to prove the correctness of this defence, the Insurance Company did not adduce any evidence. The Insurance Company took a short cut. The Insurance Company presented an application Exh. 54 before the Motor Accident Claims Tribunal and thereby called upon the driver of the tractor to produce his driving licence and to give particulars about the driving licence. The Tribunal called the say of opposite side. However, the Tribunal did not compel the driver to produce the driving licence. The owner and driver of the vehicle did not step in the witness box. As the Insurance Company presented application Exh. 54 and called upon the driver of the tractor to produce driving licence, the Tribunal came to the conclusion that the burden which was on the Insurance Company has been properly discharged by the Insurance Company. Consequently, the Motor Accident Claims Tribunal exonerated the Insurance Company.
13. In my view, the Tribunal has committed an illegality in exonerating the Insurance Company. The Insurance Company was under obligation to prove with a positive evidence, that the driver of the tractor did not hold valid driving licence on the date of accident. The Insurance Company could have summoned any responsible officer from the office of R.T.O. in order to show that the driver of the tractor did not hold valid driving licence on the date of accident. Instead of bringing positive evidence on record, the Insurance Company tried to discharge its legal burden cast on it by calling upon the driver to produce the driving licence. In my view, presentation of an application calling upon the driver to produce driving licence does not at all absolve the Insurance Company from its burden. This burden cannot be said to have been discharged by mere calling upon the driver to produce driving licence. In this behalf, reference with profit can be made to the case of Narchinva v. Kamat v. Alfredo Anotonio Doe Martins, . In this case, similar kind of issue was before the Supreme Court. In the said case, driver of the vehicle was examined. In the cross examination, he was called upon to produce the driving licence. The driver did not produce driving licence. Therefore, it was urged that adverse inference be drawn against the driver on account of his failure to produce the driving licence. The Supreme Court held that the burden to prove that there was breach of contract of insurance, was squarely placed on the shoulders of the Insurance Company and that the burden could not be said to have been discharged by mere questioning in the cross examination. The Supreme Court has further observed that the driver was under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out its liability under the contract of insurance.
14. While dealing with this issue, the Supreme Court has observed that the R. T. O. which issues driving licence keeps record of the licences issued and renewed and, therefore, the Insurance Company could have got the
evidence produced to substantiate its allegation. It is said that if such kind of substantial evidence is not produced, the Insurance Company would have failed to discharge its burden. The Insurance Company, therefore, was held to have failed to prove that there was breach of term of contract of Insurance and ultimately, the Insurance Company was directed to satisfy the award.
15. The ratio of the case of Narchinva v. Kamat (cited supra) is squarely applicable to the facts of the present case. The Insurance Company should have brought a substantial evidence in order to prove that the driver of the tractor did not hold valid driving licence on the date of accident. Mere submission of application calling upon the driver of the vehicle to produce driving licence is not at all sufficient to discharge the burden. In the result, I hold that the Insurance Company cannot legitimately claim exoneration. The finding of the Motor Accident Claims Tribunal in this behalf is, therefore, manifestly incorrect and requires modification. Accordingly, I answer point Nos. 3 and 4 in the negative.
16. In the result, First Appeal partly succeeds. The award of the Motor Accident Claims Tribunal is modified. The respondent No. 3 Insurance Company is hereby directed to satisfy the award with interest at the rate of 12% p.a. from the date of accident till payment and full costs in favour of the original claimant.
The Insurance Company has already deposited Rs. 7,500/- under No Fault Liability. The appellant has deposited Rs. 17,000/- in this Court. The Insurance Company is, therefore, directed to pay Rs. 17,0007- to the appellant. The claimant has thus received Rs. 24,5007- on 6-9-1991. Therefore, taking into consideration the total amount already paid, the respondent No. 3 Insurance Company is directed to pay interest at the rate of 12% p.a. on the principal amount of Rs. 34,000/- from 13-2-1987 to 6-9-1991. The respondent No. 3 Insurance Company is directed to pay remaining amount of award to the tune of Rs. 9,5007- together with interest at the rate of 12% p.a. from 6-9-1991 till the date of realization to the claimant.
17. Appeal partly allowed.