{"id":157930,"date":"2005-12-01T00:00:00","date_gmt":"2005-11-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/new-india-assurance-company-ltd-vs-mst-neelam-goyal-and-anr-on-1-december-2005"},"modified":"2016-04-30T05:20:44","modified_gmt":"2016-04-29T23:50:44","slug":"new-india-assurance-company-ltd-vs-mst-neelam-goyal-and-anr-on-1-december-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/new-india-assurance-company-ltd-vs-mst-neelam-goyal-and-anr-on-1-december-2005","title":{"rendered":"New India Assurance Company Ltd vs Mst. Neelam Goyal And Anr on 1 December, 2005"},"content":{"rendered":"
Jammu High Court<\/div>\n
New India Assurance Company Ltd vs Mst. Neelam Goyal And Anr on 1 December, 2005<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n  HIGH COURT OF JAMMU AND KASHMIR AT JAMMU            \n CIMA No. 75 of 2000 \n\n New India Assurance Company Ltd.  \nPetitioner\nV\/S \n Mst. Neelam Goyal and Anr  \nRespondents  \n\n! Shri R.K. Gupta,  Advocate for Petitioner.\n^ Shri M.P. Sharma, Advocate for Respondents. \n Coram : HON'BLE MR. JUSTICE J.P. SINGH     \n Dated : 01\/12\/2005\n\n\n\n: JUDGMENT :  \n<\/pre>\n
New India Assurance Company Limited is in appeal against judgment dated 29-3-2000 of Motor
\nAccidents Claims Tribunal, Jammu, in four appeals, preferred against award delivered in Claim
\nPetitions, File Nos.586, 587, 588 and 589.\n<\/p>\n
Shri R.K. Gupta, learned counsel for the Insurance Company has questioned the award of Motor
\nAccidents Claims Tribunal, Jammu, only in so far as it decides Issues No.4 and 5 against the
\nInsurance Company.\n<\/p>\n
Shri Gupta relies on National Insurance Co. Ltd., New Delhi   v.   Jugal Kishore and others<\/a>,
\nreported as AIR 1988 SC 719 and National Insurance Company Ltd.    v.    V. Velammal and
\nothers<\/a>, reported as AIR 2000 Madras 476, to urge that the Tribunal has erred in rejecting the
\nevidence produced by the Insurance Company to prove that S. Nihal Singh S\/o S. Sardara Singh,
\nthe driver of the vehicle, who happens to be the owner too of the vehicle, was not holding a valid
\ndriving licence at the time of accident. He submits that onus of proof of an Issue becomes
\nirrelevant after the parties are put to proof and disproof of the Issue. Learned counsel submits that
\nfacts within the exclusive knowledge of a party, if not placed on records, would raise a
\npresumption that if the facts had been placed on records, this would prove to the detriment of the
\nparty, who withholds such facts from the scrutiny of the Court. While elaborating his
\nsubmissions, learned counsel submits that a specific plea was raised by the Insurance Company
\nduring the currency of the trial of the Claim Petitions that the driver of the vehicle, did not hold a
\nvalid driving licence, which plea of the Insurance Company was reflected by the Tribunal in one
\nof the issues framed by it on 24-8-1994.\n<\/p>\n
The fact as to whether or not the driver of the vehicle was holding a valid driving licence, was
\nvery much within the knowledge of the driver as also of the owner. Both the driver as also the
\nowner was, thus, required to either produce a valid driving licence before the Tribunal to disprove
\nthe plea raised by the Insurance Company or produce such evidence which could prove that the
\ndriver of the vehicle was holding a valid driving licence at the time of the accident. Learned
\ncounsel submits that Tribunal has erred in appreciating evidence in accordance with law
\npropounded by Hon’ble Supreme Court of India.\n<\/p>\n
Shri R.K. Bhatia, learned counsel representing S\/Shri Jasvir Singh and Avtar Singh, legal
\nrepresentatives of the deceased respondent Nihal Singh, driver and owner of vehicle No.PUU-
\n4111, has, in reply, submitted that the Insurance Company has failed to produce requisite
\nevidence to demonstrate that the driver of the vehicle, did not hold a valid driving licence at the
\ntime of the accident. He submits that reliance of the Insurance Company on the photostat copy of
\nthe driving licence and collection of proof in regard thereto, regarding its being fake, and not
\nissued by the competent Licensing Authority, in this behalf, cannot be taken into consideration in
\nthe absence of any proof of retention of the envelope, which is alleged to have been sent by the
\ndriver of the vehicle to the Insurance Company, for verification. Learned counsel further submits
\nthat apart from the records of the Licensing Authority, which have been produced by the
\nInsurance Company in the present case, there were two other Licensing Authorities in the region,
\nwhose records have not been produced by the Insurance Company and in that view of the matter,
\nin the absence of records of such Licensing Authorities, it cannot be said that the Insurance
\nCompany had successfully proved the licence to be fake.\n<\/p>\n
I have considered the submissions of learned counsel for the parties. I have gone through the
\nstatements of the witnesses produced by the Insurance Company as also the discussion of learned
\nPresiding Officer of the Motor Accidents Claims Tribunal, Jammu, on the issue.\n<\/p>\n
Before dealing with the question raised by Shri Gupta, it would be advantageous to refer to
\nSection 169 of the Motor Vehicles Act 1988 and Rule 324 of the Jammu and Kashmir Motor
\nVehicle Rules, 1991.\n<\/p>\n
Section 169     “Procedure and  powers of Claims Tribunals.(1)  In Holding any
\ninquiry under Sec. 168, the Claims Tribunal may, subject to any rules that
\nmay be made in this behalf, follow such summary procedure as it thinks fit.\n<\/p>\n
     (2)                The Claims Tribunal shall have all the powers of a Civil Court for the
\npurpose of taking evidence on oath and of enforcing the attendance of
\nwitnesses and of compelling the discovery and production of documents
\nand material objects and for such other purposes as may be prescribed; and
\nthe Claims Tribunals shall be deemed to be a Civil Court for all the
\npurposes of Sec. 195 and Chapter XXVI of the Code of Criminal
\nProcedure, 1973 (2 of 1974).\n<\/p>\n
     (3)                Subject to any rules that may be made in this behalf, the Claims Tribunal
\nmay, for the purpose of adjudicating upon any claim for compensation,
\nchoose one or more persons possessing special knowledge of any matter
\nrelevant to the inquiry to assist it in holding the inquiry.”\n<\/p>\n
Rule 324        “Power vested in civil court  which  may  be  exercised by Claims
\nTribunal:-  (1)   Without prejudice to the provisions of Section 169:-\n<\/p>\n
   (a)  every Claims Tribunal may  exercise all or any of the powers vested
\nin a civil court under the following provisions of the J&K Code of Civil
\nProcedure, Svt. 1977 (Act of 1977) in so far as they may be applicable,
\nnamely:-\n<\/p>\n
   Sections 30, 32, 34, 35, 35 (a) and (c), 76, 77, 94, 95, 132, 133, 144, 145,
\n147, 148, 149, 151, 152 and 153:\n<\/p>\n
(b)     subject to the provisions of Section 174:-\n<\/p>\n
   (i)   if any Claims Tribunal constituted for any Division where the
\namount of compensation awarded by it does not exceed twenty-five
\nthousand rupees shall have all the powers of Civil Court, and where such
\namount exceeds the said sum shall have all the powers of the High court,
\nfor the purpose of execution of the award if the award is a decree for the
\npayment of money made in suit by City Civil Court or the High Court, as
\nthe case may be;\n<\/p>\n
    (ii)  for the purpose, other than those specified in sub-rule (1), the
\nClaims Tribunal may exercise all or any of the powers of a Civil Court as
\nmay be, necessary in any case for discharging its functions under the Act
\nand the rules made thereunder.”\n<\/p>\n
Reading of Section and Rule (supra), makes it explicitly clear that Motor Accidents Claims
\nTribunal, has all the powers of a Civil Court for the purpose of taking evidence on oath and
\npurposes akin thereto.\n<\/p>\n
As a corollary, the Tribunal is required to appreciate evidence, in the same fashion, as a Civil
\nCourt does. It, in other words, means that the decision of an Issue before a Tribunal, would, inter
\nalia, be on the basis of preponderance of probabilities.\n<\/p>\n
Onus of proof in civil cases may, thus, lose importance when the parties are put to proof or
\ndisproof of an Issue in question. Evidence led by a party, on whom the initial onus of proof lies,
\nwould, thus, govern the shifting of onus of proof on to the opposite party if on the basis of
\npreponderance of probabilities, it may be held that the party on whom the initial onus of proof
\nwas placed, had successfully discharged its onus of proof.\n<\/p>\n
It would be advantageous, at this stage, to refer to what has been held by Hon’ble Supreme Court
\nof India in National Insurance Co. Ltd., New Delhi  v.  Jugal Kishore,<\/a> reported as AIR 1988 SC\n<\/p>\n
719.
\n“10.    Before parting with the case, we consider it necessary to refer to the attitude often
\nadopted by the Insurance Companies, as was adopted even in this case, of not filing a
\ncopy of the policy before the Tribunal and even before the High Court in appeal. In this
\nconnection what is of significance is that the claimants for compensation under the Act
\nare invariably not possessed of either the policy or a copy thereof. This Court has
\nconsistently emphasized that it is the duty of the party which is in possession of a
\ndocument which would be helpful in doing justice in the cause to produce the said
\ndocument and such party should not be permitted to take shelter behind the abstract
\ndoctrine of burden of proof. This duty is greater in the case of instrumentalities of the
\nState such as the appellant who are under an obligation to act fairly. In many cases even
\nthe owner of the vehicle for reasons known to him does not choose to produce the policy
\nor a copy thereof. We accordingly wish to emphasise that all such cases where the
\nInsurance Company concerned wishes to take a defence in claim petition that its liability
\nis not in excess of the statutory liability it should file a copy of the insurance policy along
\nwith its defence. Even in the instant case had it been done so at the appropriate stage
\nnecessity of approaching this Court in Civil Appeal would in all probability have been
\navoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but
\nalso helps the Court in doing justice between the parties. The obligation on the pat of the
\nState or its instrumentalities to act fairly can never be over-emphasised.”\n<\/p>\n
The issue in question, i.e., Issue No.4 was, thus, required to be considered by the Tribunal, on the
\nlines indicated hereinabove. I will now proceed to consider as to whether or not the Issue has
\nbeen dealt with according to law by the learned Presiding Officer of Motor Accidents Claims
\nTribunal, Jammu.\n<\/p>\n
The Appellant-Insurance Company produced Lt. Col. Charanjit, who had been appointed by it to
\ninvestigate the matter, particularly as to the genuineness of licence alleged to have been possessed
\nby S. Nihal Singh. This witness has testified regarding his investigation in the matter and coming
\nto the conclusion that licence, said to have been possessed and issued in favour of Nihal Singh,
\nwas fake. The witness had addressed a communication to Nihal Singh to produce his driving
\nlicence for the purpose of verification, in answer whereto, Nihal Singh sent a photocopy of the
\nlicence, which on verification from the concerned Licensing Authority, which was alleged to
\nhave issued the licence, was found to be fake. Ajay Kumar Dogra, Surveyor, another witness of
\nthe Insurance Company, had approached the concerned Licensing Authority to verify authenticity
\nof the licence. The Licensing Authority certified that no such licence, as is alleged to have been
\nissued to Nihal Singh, had been so issued by the Licensing Authority. Certificates issued by the
\nLicensing Authorities have been proved by this witness. Appellant did not rest here. It produced
\nyet another witness, namely, Vipan Kumar, General Clerk, SDM, Hamirpur, as its witness. This
\nwitness states that SDM, Hamirpur, is the Licensing Authority under Motor Vehicles Act. He
\nsays that he has been posted as General Clerk with the Licensing Authority, Hamirpur. Register
\nregarding issuance of Driving Licences was brought by him before the Tribunal and according to
\nthe Register, the licence of S. Nihal Singh, bearing Driving Licence No.6854\/H was not found to
\nhave been so issued in the name of S. Nihal Singh.  He further says that no licence in name of S.
\nNihal Singh has been issued on 8-1-1985 too. He further testifies that Ajay Kumar, witness, had
\nsubmitted an application to the Licensing Authority on 22nd January, 1996 and sought
\nverification regarding the issuance of Licence No.6854\/H. Certificate issued in this behalf  by  the
\nLicensing  Authority, certifying that no such licence has been issued by it, has been admitted by
\nhim to be correct. This witness has further testified that Licence No.6854\/H is recorded to have
\nbeen renewed and issued in the name of one Kuldeep Singh S\/o Beli Ram on 27th November,
\n1984. The only thing, which could be elicited from the cross-examination of this witness, is that
\napart from Licensing Authority, Hamirpur, there are two other Licensing Authorities in Hamirpur
\nDivision, which are functioning as Registering and Licensing Authority, Bursar, and Registering
\nand Licensing Authority, Nadaun.\n<\/p>\n
I have considered the evidence of this witness and I am of the opinion that the Insurance
\nCompany has successfully discharged its initial onus of proof on the basis of preponderance of
\nprobabilities. It was now open to the driver or owner of the vehicle to disprove the facts brought
\non records by the Insurance Company.\n<\/p>\n
The driver\/owner of the vehicle has, however, opted to maintain silence in the matter. Neither any
\nevidence was produced nor had the owner or driver of the vehicle, appeared in the witness box to
\nrebut the evidence led by the Insurance Company or even assert on oath that the driver of the
\nvehicle, did hold a valid driving licence at the time when the vehicle met with an accident.\n<\/p>\n
Facts, which were exclusively in the knowledge of the owner and driver of the vehicle, were not,
\nthus, placed on records to rebut the case set up by the Insurance Company that the driver of the
\nvehicle did not hold a valid driving licence. Much is sought to be made by the owner from the
\nstatement of Shri Vipan Kumar, General Clerk, Licensing Authority, Hamirpur, when the witness
\ninformed the Tribunal that there are three Licensing Authorities in the Hamirpur Division.
\nExistence of other two Licensing Authorities in Hamirpur Division does not, in any way, weaken
\nthe case set up by the Insurance Company because these Licensing Authorities, according to the
\nstatement of the witness, have specifically been named as Licensing Authority Bursar, and
\nLicensing Authority, Nadaun. These Authorities carry different nomenclature than the
\nnomenclature of the main Licensing Authority, i.e., Licensing Authority, Hamirpur. No benefit,
\nthus, could be derived by the owner because of there being three Licensing Authorities in
\nHamirpur Division.\n<\/p>\n
Plea of Shri Bhatia that in the absence of records of other two Licensing Authorities, it cannot be
\nheld that the Insurance Company had discharged the onus of proof of Issue which lay heavily on
\nit, is without merit. A party supposed to be possessed of a document and in the present case, an
\nimportant document like driving license, on the basis whereof, a driver gets right to drive a
\nvehicle, having not been produced before the Tribunal for its examination, deprives the
\nowner\/driver of the vehicle to urge that the driver did hold a valid driving licence at the time of
\nthe accident. Shri Bhatia submitted that provisions of the Evidence Act, do not apply to
\nproceedings under Motor Accidents Claims Tribunal and in that view of the matter, onus of
\nproof, cannot be shifted on to the driver.\n<\/p>\n
I am not impressed with this submission of Shri Bhatia. Even if one were to hold that Evidence
\nAct is not, as such, applicable to the proceedings before Motor Accidents Claims Tribunal, yet it
\ncannot be conceived that principles underlying various provisions of the Evidence Act, which are
\nbased on CASUS CONSCIENTIAE and fair play, cannot be ignored in proceedings before a
\nMotor Accidents Claims Tribunal.\n<\/p>\n
Section 169 of the Motor Vehicles Act, 1988 and Rule 324 of the J&K Motor Vehicle Rules,
\n1991, provide the status of a Civil Court to the Motor Accidents Claims Tribunal. The Act and
\nthe Rule (supra) supply powers of a Civil Court to the Tribunal in adjudicating claims under the
\nAct. Adjudication, in terms of Section 168 of the Act, would require decision on rival contentions
\nof the parties. Adjudication may, thus, depend on affidavit, documentary or oral evidence. In such
\ncases, therefore, principles underlying various provisions of the Evidence Act, cannot be given a
\ngo-bye, though strict application of the Evidence Act may not be desirable. In nutshell,
\nadjudication of a cause has to be on the preponderance of probabilities on the basis of material or
\nevidence, be that evidence on affidavit, documentary or oral evidence produced or adduced by the
\nparties in a cause before a Claims Tribunal. A party to a litigation, who is under law entitled to
\nthe possession of a document cannot, thus, be permitted to avoid placing such documents before
\nthe Tribunal, so as to resolve an Issue pending before it, particularly when the existence,
\nauthenticity or validity of such document is in question. Silence on the part of such party in the
\nmatter, coupled with his omission to produce such documents, cannot be countenanced except on
\njustifiable grounds supporting such non-production. Non-production of evidence or documents by
\nsuch party would entail adverse inference against such party.\n<\/p>\n
Motor Accidents Claims Tribunal, Jammu, has, thus, erred in deciding Issue No.4 against the
\nAppellant-Insurance Company.\n<\/p>\n
Finding on this issue is, therefore, reversed. Consequently, finding on Issue No.5 is modified. The
\namount awarded by the Tribunal is held recoverable from the legal representatives [Jasvir Singh
\nand Avtar Singh, both sons of Late Nihal Singh, R\/o V.P.O. Dala, District Moga (Punjab)] of the
\ndriver and owner of motor vehicle, i.e., deceased respondent Nihal Singh.\n<\/p>\n
I am conscious of the fact that Chapter XII of the Motor Vehicles Act, indicates welfare
\nlegislation, intended for speedy adjudication of disputes and realization of compensation, arising
\nout of the use of the motor vehicles, by the claimants. Recovery of amount of compensation by
\nthe claimants from the owner and driver of the vehicle, is likely to take some time. The case is
\nalready delayed and claimants deprived of their due compensation. In these circumstances, any
\ndelay in payment of amount of compensation to the claimants, would aggravate their agony.\n<\/p>\n
In these circumstances, I deem it proper and just to direct that the Appellant-Insurance Company
\nshall deposit awarded amount along with interest @ 12% accrued thereon till date, in this Court in
\nthe appeals, within a period of one week, which, when so deposited, shall be released in favour of
\nthe claimants by Registrar Judicial of this Court, on proper identification. At the same time, I
\nconsider it appropriate to direct that the amount paid by the Appellant-Insurance Company to the
\nclaimants in terms of this order, shall be recoverable by the Appellant-Insurance Company from
\nthe legal representatives of deceased respondent Nihal Singh and the properties, both moveable
\nand immoveable, left by deceased Nihal Singh, alongwith interest @ 12% per annum on the
\namount, which has been ordered to be released in favour of the claimants till the amount is
\nrecovered by the Appellant-Insurance Company from the legal representatives of deceased Nihal
\nSingh. The Tribunal, as and when approached by the Insurance Company in this behalf, shall
\nexpedite the recovery of amount, which has been ordered to be paid to the Claimants, from the
\nlegal representatives and properties left by deceased S. Nihal Singh.\n<\/p>\n
Finding of Motor Accidents Claims Tribunal, Jammu, on Issue No.5 is accordingly modified.\n<\/p>\n
This appeal is allowed in the terms indicated hereinabove.\n<\/p>\n
A copy of this judgment shall be placed on the connected files, being CIMA No.76\/2000,
\nCIMA No.77\/2000 and CIMA No.78\/2000, which shall stand disposed of alongwith connected
\nCMPs in all these CIMAs, in terms of this judgment.\n<\/p>\n
                      4<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court New India Assurance Company Ltd vs Mst. Neelam Goyal And Anr on 1 December, 2005 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-157930","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nNew India Assurance Company Ltd vs Mst. 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