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The Branch Manager, New India Insurance Co. Ltd. Vs. Kausalyabai and Ors. - (High Court of Bombay) (30 Sep 2022)

Burden of establishing the fact that the offending vehicle was being driven by a person holding valid driving licence is on the owner of the vehicle

MANU/MH/3496/2022

Motor Vehicles

The Appellant-Insurance Company, who is original Respondent, has challenged the judgment and award, passed by the Motor Accident Claims Tribunal, ("the learned Tribunal") in the Claim Petition, only on the ground that the learned Tribunal has wrongly fastened the liability of paying the compensation upon the Insurance Company by holding that the Insurance Company has failed to establish the fact that the driver of the offending vehicle was not possessing valid driving licence at the time of accident. The Insurance Company, however, has not challenged the assessment done by the learned Tribunal in respect of the compensation.

The burden of establishing the fact that, the offending vehicle was being driven by a person holding valid driving licence is on the owner of the vehicle and the liability of paying the compensation can only be fastened upon the Insurance Company after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by the authorised person holding valid driving licence at the time of accident. Thus, it is clearly evident that such burden is upon the owner of the offending vehicle and the Insurance Company cannot be held answerable for not proving the same. Further, the Hon'ble Apex Court, in the judgment in the case of Pappu & others vs. Vinod Kumar Lamba and Ors., has also held that, if the owner fails to prove the fact that the driver of the offending vehicle was having valid driving licence, but at the same time, the vehicle was covered under the Insurance Policy, then to sub-serve the ends of justice, the Insurer can be asked to satisfy the award with liberty to recover the same from the owner of the offending vehicle, in accordance with law.

In the instant case, the owner of the offending vehicle, despite receipt of such notice, failed to provide any substantial document to show that the driver, at the relevant time, was possessing valid driving licence. There is no evidence forthcoming from Respondent No. 5-owner to discharge the burden of proving that the driver of the offending vehicle was holding valid driving licence at the time of accident. Since Respondent No. 5-owner has not filed any written statement despite appearance, no such facts are pleaded by him, as required under the aforesaid observations of the Hon'ble Apex Court.

Thus, considering all these aspects, an inference has to be drawn that the driver of the offending vehicle was not possessing valid driving licence at the time of accident and, therefore, though the Insurance Company can be asked to satisfy the award, but it is also entitled to seek relief for recovery of award amount from Respondent NO. 5-owner of the offending vehicle.

It is significant to note that, the appellant-Insurance Company appears to have deposited the entire amount of compensation under the impugned award, including the award under Section 140 of the Motor Vehicles Act, 1988, under the principle "no fault liability". As such, the Appellant-Insurance Company is entitled to recover the same from Respondent No. 5-owner of the offending vehicle. Liberty is granted to the appellant-Insurance Company to recover the amount of compensation including the amount under no fault liability from Respondent No. 5-owner of offending vehicle. Appeal partly allowed.

Tags : AWARD   COMPENSATION   LIABILITY  

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