# National Insurance Co. Ltd., Civil Lines, Allahabad v. Sri Satya Narain Kesarwani & Ors

- **Citation:** (2023) 7 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** First Appeal From Order No. 1394 of 2006
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/national-insurance-co-ltd-civil-lines-allahabad-v-sri-satya-narain-kesarwani-ors-50502
- **Pages:** 19

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-
fatal
accident-deceased
was crushed under the wheels of the
tanker and died on the spot-The claim
petition was instituted by the deceased's
father, claiming compensation for himself
and the deceased's mother, the two
dependents, who survived-the deceased
was 25 years old and engaged in the
business of selling rice- Annual income of
the deceased is considered to be Rs.
36,000/- 50% added towards future
prospects as per Rules 220-A(3) of 1998
and applied Multiplier 18-Hence, total
compensation granted Rs. 5,96,000/- @
7%.(Para 1 to 47)

B. Filial consortium is the right of the
parents to compensation in the case of an
accidental death of a child. An accident
leading to the death of a child causes
great shock and agony to the parents and
family of the deceased. The greatest
agony for a parent is to lose their child
during their lifetime. Children are valued
for their love, affection, companionship
and their role in the family unit.(Para 45)
The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,967 of 64,976. This is a partial read: ask again with offset=39967 for what follows._

7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 117
shall be payable as per entitlement to each
of the claimants and/ or their legal
representatives in account in such manner
as the Tribunal directs.
----------
(2023) 7 ILRA 117
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 1394 of 2006
With
Cross Appeal/Cross Objection No. 65668 of
2013

National Insurance Co. Ltd., Civil Lines,
Allahabad ...Appellant
Versus
Sri Satya Narain Kesarwani & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Komal Mehrotra

Counsel for the Respondents:
Sri Ram Singh, Sri Vinay Kumar Chaturvedi

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
compensation-
fatal
accident-deceased
was crushed under the wheels of the
tanker and died on the spot-The claim
petition was instituted by the deceased's
father, claiming compensation for himself
and the deceased's mother, the two
dependents, who survived-the deceased
was 25 years old and engaged in the
business of selling rice- Annual income of
the deceased is considered to be Rs.
36,000/- 50% added towards future
prospects as per Rules 220-A(3) of 1998
and applied Multiplier 18-Hence, total
compensation granted Rs. 5,96,000/- @
7%.(Para 1 to 47)

B. Filial consortium is the right of the
parents to compensation in the case of an
accidental death of a child. An accident
leading to the death of a child causes
great shock and agony to the parents and
family of the deceased. The greatest
agony for a parent is to lose their child
during their lifetime. Children are valued
for their love, affection, companionship
and their role in the family unit.(Para 45)
The appeal is partly allowed. (E-6)

List of Cases cited:

1. Saroj Devi & ors. Vs Royal Sundaram Alliance
Ins. Co. Ltd. & anr. (2016) 2 TAC 281 All..

2. V. Mekala Vs M. Malathi & anr. (2014) 11 SCC
178

3. M.R. Krishna Murthi Vs New India Assur. Co.
Ltd & ors. (2020) 15 SCC 493

4. Gopalpuri Jai Prakash & ors. Vs The
Managing Dir, APSRTC & ors., MACMA. No.
694 of 2011

5. Meena Pawaia & ors. Vs Ashraf Ali & ors.
(2021) SCC OnLine SC 1083

6. Gyan Chand Jain & ors. Vs Permanand & ors.
(2003) 1 TAC 490

7. Sarla Verma(Smt.) & ors. Vs DTC (2009) 6
SCC 121

8. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

9. National Ins. Co. Vs Pranay Sethi & ors.
(2017) 16 SCC 680

10. New India Assur. Co. Ltd Vs Urmila Shukla &
ors. (2021) SCC OnLine SC 822

11. Sushil Kumar & ors. Vs M/s. Sampark
Lojastic Pvt. Ltd & ors. (2017) 35 LCD 1311

12. P.O. Meera & anr..Vs Ananda P. Naik & ors.
(2022) SCC OnLine Ker 546

13. Branch Manager, Future General India Ins.
Co. Ltd. Bengaluru Vs Varsha S.L. (2019) SCC
OnLine Kar 3498
118 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Shashikala & ors. Vs Ganga-lakshmamma &
anr.. (2015) 9 SCC 150

15. United India Ins. Co. Ltd. Vs Smt. Shashi
Prabha Sharma & ors. (2015) 4 TAC 650 All

16. National Ins. Co. Ltd. Vs Challa Upendra Rao
(2004) 8 SCC 517

17. Shri Kedar Singh Vs Sarla Devi & O rs,
FAFO No.2261 of 2019

18. Pappu & ors. Vs Vinod Kumar Lamba & anr.
(2018) 3 SCC 208

19. Pepsu Road Trans. Corp. Vs National Ins.
Co. Ltd.(2013) 6 AWC 5736

20. Rishi Pal Singh Vs New India Assur. Co. Ltd.
& ors. (2022) 3 ACC 556

21. National Ins. Co. Ltd. Vs Swaran Singh
(2004) 3 SCC 297 : 2004 SCC (Cri) 733

22. The Branch Manager, New India Ins. Co. Ltd. Vs
Kausalyabai & ors., First Appeal 259 of 2003

23. Rukmani & ors. Vs New India Assur. Co. &
ors. (1998) 9 SCC 160

24. United India Ins. Co. Ltd. Vs Lehru & ors.
(2003) 3 SCC 338

25. New India Assurance Co. Vs Kamla & ors.
(2001) 4 SCC 342

26. UPSRTC Vs Trilok Chandra (1996) 4 SCC 362

27. Puttamma Vs K.L. Narayana Reddy (2013)
15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3
SCC (Cri) 574

28. Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors.(2018) 18 SCC 130

(Delivered by Hon'ble J.J. Munir, J.)

1. This appeal under Section 173 of
the Motor Vehicles Act, 1988 is directed
against the judgment and award of the
Motor Accident Claims Tribunal/ the
Additional District Judge, Court No.13,
Allahabad dated 28.02.2006 passed in
MACP No.407 of 2004.

2. The appeal is by the Insurance
Company, who say that they are not liable.

3. Cross Objection No.65668 of 2013
has been brought on behalf of the
claimants, who are respondents to the
appeal, saying that the compensation
awarded is insufficient and ought to be
enhanced.

4. This judgment will decide both the
appeal and the cross-objections.

5. The facts giving rise to the claim
petition are that one Dinesh Kumar
Kesarwani was engaged in the business of
retailing rice. On 08.07.2004, he was
proceeding on a bicycle along with one
Somnath Kesarwani - both riding their
bicycles from Police Station Saini, District
Kaushambi
towards
Shiv
Kuti
in
Allahabad. He was riding his bicycle
according to the rule of the road. At about
20 minutes past 12 in the afternoon hours, a
gas tanker approached from the Phaphamau
end of the road. It bore registration No.
HR-29GA-0320. The tanker was driven by
its driver at a high speed and negligently.
On the Phaphamau bridge, the tanker
aforesaid came over to Kesarwani's side
and hit his bicycle. Dinesh Kumar
Kesarwani was crushed under the wheels of
the tanker and died on the spot. The claim
petition was instituted by Satya Narain
Kesarwani, the deceased's father, claiming
compensation
for
himself
and
the
deceased's mother, Smt. Nirmala Devi, the
two dependents, who survived Dinesh
Kumar Kesarwani. It was claimed that the
deceased was 25 years old and engaged in
the business of selling rice. He was a self-
7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 119
employed man, who would earn Rs.6000/-
per month.

6. The owner of the offending tanker,
one Tara Chand Goel was impleaded as
opposite party No.1 to the claim petition
and the National Insurance Company Ltd.,
M.G. Marg, Civil Lines, Allahabad were
the insurers of the offending tanker. The
National
Insurance
Company
(the
appellant)
and
Tara
Chand
Goel
(respondent No.3) shall hereinafter be
referred to as 'the Insurers' and 'the owner',
respectively. The father and the mother of
the
deceased,
including
the
legal
representatives of the father, substituted
pending this appeal, shall be referred to as
'the claimants', unless the context otherwise
requires. The claimants demanded a total
compensation in the sum of Rs.12,55,000/-.

7. The owner filed a written
statement, generally denying the claimants'
case. It is pleaded that the offending tanker
is insured with the Insurers and information
of the accident was given to the Insurers.
The offending tanker had a national permit,
and that, it was fit and roadworthy. The
driver of the tanker held a valid driving
licence. The accident happened on account
of the deceased's negligence while riding
his bicycle. It was the deceased, who by his
own negligence, came under the wheels of
the offending tanker. Along with the written
statement, the owner filed eight documents,
which include a power of attorney, a notice
sent to the Insurers, registration certificate,
permit, fitness certificate, a copy of the
insurance cover, driving licence and the
five yearly permit.

8. The Insurers filed a separate
written statement, generally denying the
claimants' case. In the additional pleas, it
was averred that the registration book, the
driving licence and the permit of the
offending tanker, besides other papers have
not been filed along with the petition. The
compensation
claimed
for
the
loss
sustained was described as false and bogus,
saying that no accident ever took place. It
was averred that the claimants have not
given the necessary documents and other
information in support of the claim petition.
The
compensation
demanded
is
disproportionate. A plea was also raised to
the effect that the offending tanker was
being driven against the terms and
conditions of the insurance policy at the
time of the accident, disentitling the
claimants or the owners from recovering
from the Insurers. In Paragraph No.29, it is
averred that at the time of the accident, the
driver of the offending tanker did not hold a
valid and effective driving licence to drive
the particular kind of vehicle that the
offending one was. On these pleas, the
Insurers asked to be relieved of their
liability.

9. On the pleadings of parties, the
following issues were framed (translated
into English from Hindi):

"1. Whether on 08.07.2004 at
about 12.20 in the afternoon, at the Ganga
Bridge, Phaphamau, within the local limits
of P.S. Shiv Kuti, District Allahabad,
vehicle bearing registration No. HR-29GA0320, driven at a high speed and
negligently by its driver, hit Dinesh Kumar
Kesarwani, when he was riding his bicycle,
on account of which he sustained injury,
leading to his death?

2. Whether the accident happened
on account of the exclusive negligence of
the deceased?

3. Whether at the time of the
accident, the driver of the vehicle in
question held a valid driving licence?
120 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Whether at the time of the
accident, the motor vehicle in question was
insured the opposite party, Insurance
Company, in accordance with rules?

5. Whether the claimants are
entitled to receive any compensation, if
yes, from whom?"

10. The claimants filed through a list
of documents eight papers, that includes the
First Information Report, the charge-sheet,
the site plan, the postmortem report, the
technical inspection report, the registration
certificate, the insurance policy and a copy
of the driving licence.

11. In the oral testimony, the
claimants examined PW-1, Satya Narain,
one of the two claimants. In addition,
Somnath Kesarwani was examined as PW2.

12. On behalf of the owners, a copy of
the driving licence was filed. The Insurers
filed a report of their Investigator on
24.02.2006, who submitted his report along
with a certificate from the concerned
Regional Transport Officer about the
driving
licence,
subject
matter
of
consideration here.

13. Issue No.1 was decided in favour
of the claimants and against the owner and
the Insurers. Issue No.2 was also decided in
favour of the claimants and against the
Insurers and the owner holding that there
was no negligence of the deceased
involved, leading to the accident. Issue
No.3 was also decided in favour of the
claimants and against the Insurers albeit
with some vacillating remarks, but in the
end holding that the Insurers could not
prove by any evidence, apart from their
own Investigator's report that the licence
was forged or bogus. Issue No.4 was also
decided in favour of the claimants and the
owner and against the Insurers holding that
on the date of the accident, the offending
tanker was duly insured with the Insurers.

14. While deciding Issue No.5, which
relates to compensation, to which the
claimants are entitled, the Tribunal credited
the deceased with a daily income of
Rs.100/- per day and making allowance for
six days of holiday/ non-working days, the
monthly income was determined at a sum
of Rs.2400/-. The deduction towards
personal and living expenses was ordered
to the extent of a one-third, that is say,
Rs.800/-, leaving back a dependency for
the claimants in the sum of Rs.1600/- per
month. The annual income was, therefore,
determined at Rs.19,200/-. The deceased's
father was aged 49 years and his mother 46.
The Tribunal adopted the multiplier of '13',
going by the age of the claimants rather
than the deceased. Adopting that multiplier,
a compensation of Rs.2,49,600/- was
awarded, to which was added a sum of
Rs.2000/- in funeral expenses. Thus, the
total compensation, that was awarded, was
a sum of Rs.2,51,600/- carrying 6% simple
interest, annually reckoned, from the date
of institution of the claim petition, until
realization.
The
entire
compensation
payable was directed by the Tribunal to be
shared equally between the claimants.

15. Heard Mr. Komal Mehrotra,
learned Counsel for the Insurers, Mr. Ram
Singh, learned Counsel appearing on behalf
of the claimants and Mr. Vinay Kumar
Chaturvedi, learned Counsel appearing on
behalf of the owner.

16. Mr. Ram Singh, learned Counsel
has been heard in support of the crossobjections and Mr. Komal Mehrotra and
Mr. Vinay Kumar Chaturvedi in answer.
7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 121

17. It is argued by Mr. Komal
Mehrotra that the Insurers are not liable in
this case, because the driver was a man,
named Hazrat Ali. He was not holding a
valid licence. A photostat copy of the
driving licence for this driver, that was
provided, when verified with the Licensing
Authority,
Rajkot,
Gujarat,
who
has
purportedly issued it, revealed that the
driving licence on the relative number was
issued in the name of one Harsab Bhai. The
driving licence verification report was
submitted before the Tribunal. It is pointed
out that along with the report that was filed,
an
application,
paper
No.26-Ga
was
moved, that is to say, the application dated
22nd
February,
2006,
requesting
the
Tribunal to summon the original record
from the Licensing Authority. It is pointed
out that by means of an order dated 24th
February, 2006, the Tribunal directed the
licence verification report to be kept on
record, but did not pass any order to
summon records from the Licensing
Authority, Rajkot. It is argued that while
deciding
Issue
No.3,
the
Tribunal
committed a manifest error of law in
holding that since the Insurers produced the
Investigator's report on record to show that
the driving licence was fake, whereas the
claimants produced a copy of it, the
Insurers' case about the licence being fake
could not be accepted. It is emphasized that
along with the Investigator's report dated
2nd September, 2005, the driving licence
verification report from the Licensing
Authority, Rajkot in original was also filed.
The submission is that the Insurers by
producing all this evidence evidence
discharged their burden to show that the
licence claimed for the driver by the owner
was fake. With so much of evidence, it was
for the claimants or the owner to prove by
leading evidence in rebuttal that the licence
was genuine. It is urged that in the face of
such facts, the Insurers should have been
given the right to recover from the owner
as there was a breach of the policy.

18. About the compensation claimed,
it is argued that there is no evidence of the
deceased being gainfully employed in the
business of retailing rice. Therefore,
according to the Insurers, he could at best
be credited with a notional income of
Rs.15,000/- per year. The Tribunal was in
error in finding for the deceased an annual
income of Rs.19,200/-.

19. Mr. Ram Singh, learned Counsel for
the claimants has refuted the submissions
advanced on behalf of the Insurers. He
submits that it is enough for the owner to
produce a photostat copy of the licnece,
giving full particulars thereof. He emphasizes
that to prove that the licence held by the
driver was fake, burden lay upon the Insurers
to ensure summoning of records from the
Licensing Authority or an official of theirs,
who issued the certificate about the licence,
on the foot of which the licence is dubbed as
fake. The official, once summoned, would
have to prove the certificate and subject
himself to cross-examination. It is then that
the Insurers' burden could be discharged or
shifted to the owner and the claimants, in the
sense of the evidential burden.

20. On the point of the validity of the
licence, learned Counsel for the owner, Mr.
Vinay Kumar Chaturvedi has supported the
claimants' stand. He too submits that given
the details of the licence, it was incumbent
upon the owner to summon some official
from the Licensing Authority's office for
the purpose of proving the certificate, on
which the Insurers rely.

21. So far as the appeal is concerned,
the thrust of the parties' contention is about
122 INDIAN LAW REPORTS ALLAHABAD SERIES
the validity of the licence held by the driver
and the standards by which it must be
proved to be fake or held genuine. Of
course, the allied question, who would bear
the burden of dispelling the validity of the
licence or affirming its genuineness, has
been mooted at length during the hearing.

22. In support of his submission, Mr.
Mehrotra has relied upon the decision of
this Court in United India Insurance United
India Insurance Co. Ltd. v. Smt. Shashi
Prabha Sharma and others, 2015 (4) TAC
650 (All). Apparently, the said Full Bench
deals with a very different question, which
is concerned more about the mode to
recover from the owner assuming a case
where the direction is to pay and recover.
Therefore, the said authority is not of much
assistance to the Insurers.

23. The next decision on which the
learned Counsel for the Insurers has relied
is National Insurance Co. Ltd. v. Challa
Upendra Rao, (2004) 8 SCC 517. The
holding of their Lordships of the Supreme
Court in Challa Upendra Rao (supra) is to
the effect that where a transport vehicle
plies without a permit, it constitutes a
violation of Section 149(2) of the Motor
Vehicles Act and affords a defence to the
Insurers. In that case, it was held that the
Insurers would have a right to pay and
recover. To the understanding of this Court,
that is not at all the point involved here.

24. Mr. Mehrotra has further placed
reliance upon an unreported decision of this
Court in Shri Kedar Singh v. Sarla Devi
and others, FAFO No.2261 of 2019,
decided on 27.09.2021. In Shri Kedar
Singh (supra), there are certain remarks of
my esteemed brother Siddharth that require
consideration. In Shri Kedar Singh, it has
been observed by His Lordship:

"16. Learned counsel for the
respondent
no.4/Reliance
General
Insurance Co. Ltd., has submitted that
while deciding issue no.3 the tribunal has
rightly proceeded and recorded a finding
that the driver of the truck did not had a
valid and effective driving licence at the
time of the accident as the driving licence
on record was found to be fake.A bare
perusal of the finding on issue no.3 would
go on to show that apart from bringing on
record a mere photocpy of the driving
licence (driving license no.2222/RJ/2005)
no other evidence was filed by the
owner/appellant.
Neither
the
original
driving license was brought on record by
the owner of the truck/ appellant nor did he
entered the witness box to substantiate the
same. Even the driver was not examined by
the owner of the truck/appellant. The
insurance company on its part investigated
the validity of the driving licence(DL No.
2222/RJ/2005) and consequently filed the
report received from the concerned R.T.O.
under Form 54 before the tribunal. The bare
perusal of the report received on Form 54
would go on to show that the driving
licence no. 2222/RJ/2005 was issued in
favour of one Krishna Goapal and not in
the name of the alleged offending driver i.e,
Bhola. As such the photocopy of the
driving licence of Bhola filed by owner of
the truck/appellant was a fake document. It
is a settled proposition of law that Form 54
is a public document which does not
requires further evidence of formal proof
by examining a witness....

18. During the course of further
hearing the owner of the truck/ appellant
relied upon the judgement of the Apex
court in the case of Pappu and others Vs.
Vinod Kumar Lamba and another, reported
in (2018) 3 SCC,208 and Pepsu Road
Transport
Corporation
vs.
National
Insurance Company Ltd., reported in
7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 123
2013(6) AWC 5736. Both these judgements
have been relied upon by the owner of the
truck/appellant which in fact support the
stand of the insurance company/respondent.
In the case of Pappu (supra) the Apex court
has laid down the parameters of burden of
proof of driving licence.

19. It has been categorically held
in para-13 in the case of Pappu(Supra) that
" the insurance company would be made
liable only when the foundational fact are
pleaded and proved by the owner of the
offending vehicle."

20. In the facts and circumstances
of the present case neither did the owner of
the truck/applicant bring on record the
original driving license of the driver(Bhola)
of offending vehicle nor did he enter into
the witness box to establish the validity of
the driving license. In fact even the driver
was not produced before the tribunal. In
such
circumstances
mere
filing
of
photocopy of the driving license would not
absolve the owner of the truck/appellant of
his liability. To the contrary the insurance
company/respondent on its part had duly
filed
Form
54
which
categorically
established the fact that the document
brought on record by the owner respondent
was
a
fake,
forged,
fraudulent
and
fabricated document.

21. So far as the case of Pepsu
Road
Transport
Corporation(supra)
is
concerned
the
same
is
easily
distinguishable and do not apply in the
peculiar facts and circumstances of the
present case. In the case of Pepsu(supra)
the insurance Company had brought on
record
a
photocopy
of
the
register
maintained for issuing the licence. The
report itself was not conclusive since it
mentioned that register might be missing.
But in the facts and circumstances of the
present case the Form 54 categorically
mentioned that the driving licence was
issued in the name of a different person
than the alleged offending driver,i.e.,
Bhola.

22. Apart from the above in the
case of Pepsu(supra) the insured/employer
during the process of employment of the
driver had put the driver to a driving test
and had infact imparted training to him
also. The said aspect of the matter was duly
pleaded and proved by the owner/insured
by entering the witness box and proving the
same.
In
the
peculiar
facts
and
circumstances of the present case, no such
assertion or efforts had been made by the
owner of the truck/appellant before the
tribunal or for that matter before this court.
He merely filed a photocopy of the driving
license of driver Bhola, which would not
discharge him from his burden of proof.

29.
Regarding
the
second
submission of the learned counsel for the
owner of the truck/appellant of the
discarding of the validity of driving licence
of the truck driver by the tribunal, this court
finds that only photocopy of the driving
licence of the driver, Bhola was brought on
record by the owner /appellant before the
tribunal. The vehicle owner never appeared
in witness box before the tribunal to prove
that the driving licence was given to him by
his driver, Bhola and he was satisfied that it
is genuine. He also did not proved that he
made efforts to see that the driver is
competent to drive. He was required to
prove before the tribunal that he had taken
reasonable care in employing the driver,
who was qualified and competent to drive
the vehicle. The liability as between the
insurer and the insured depends upon the
reasonable care taken by the owner of the
vehicle, while employing a qualified and
competent driver. These basic facts are
required to be proved by the owner of the
vehicle before the tribunal so as to protect
himself from the liability viz- a- viz
124 INDIAN LAW REPORTS ALLAHABAD SERIES
insurance company before the Motor
Accidents Claims Tribunal."

25. In a more recent decision of the
Supreme Court in Rishi Pal Singh v. New
India Assurance Co. Ltd. and others,
2022 (3) ACC 556, the question about the
burden of proof regarding the validity of
the licence in a motor vehicle accident
claim as between the owner, the insurer and
the claimant arose for consideration of their
Lordships, where it was held:

"10. The owner of the vehicle is
expected to verify the driving skills and not
run to the licensing authority to verify the
genuineness of the driving license before
appointing a driver. Therefore, once the
owner is satisfied that the driver is
competent to drive the vehicle, it is not
expected from the owner thereafter to
verify the genuineness of the driving
license issued to the driver."

26. Rishi Pal Singh (supra) was a case
where the driving licence was not found
genuine, but the facts were that the owner
deposed on affidavit before the Tribunal
that prior to employing the driver, he had
subjected the driver to a driving test and
found his driving skills satisfactory. In his
cross-examination, the owner said that the
driver was employed with him for three
years before the date of the accident. The
owner stood by the fact in his crossexamination that he had taken the driver's
driving test before employing him. One
feature of the case was that the owner said
that the driving licence was obtained from
the driver and it was issued by a Licensing
Authority in Nagaland, but the owner did
not produce it in evidence. The Tribunal
and the High Court held that the owner
alleged that the driver had a licence from
Nagaland,
but
did
not
produce
it.
Therefore, the Insurance Company was
entitled to recover from the owner. Before
their Lordships in appeal by special leave,
as the report of the decision would show,
the
records
of
the
Tribunal
were
requisitioned. The records revealed that the
driver's licence was produced before the
Tribunal by the claimant. The genuineness
of that licence was investigated and in the
report that was submitted, the driving
licence purporting to be issued by the
Licensing Authority, Mandi, State of
Himachal Pradesh, was not found genuine.
It was in the context of the above facts that
in Rishi Pal Singh, it was held:

"5. Thus, it was the claimant
alone who relied upon the license issued by
Licensing Authority Mandi. The same was
not found to be genuine. The statement of
the owner, that the license was from
Nagaland
is
without
any
supporting
documents and is thus meaning less. The
fact remains, having appointing driver after
taking test, the Appellant was not expected
to make enquiries from the licensing
authority as to whether driving license
shown to him is valid or not.

6. If the owner has stated that
driver had produced the driving license
from Nagaland but no such license was
produced on record, it is obviously a
mistake on the part of the owner. However,
such aspect cannot be used to grant liberty
to the Insurance Company to recover the
amount from the owner when the driving
license actually produced by the claimant
themselves was from Una, Himachal
Pradesh. It may be stated that falsus in uno,
falsus in omnibus is not the principle
applicable in India. Therefore, even if a
part of the statement that the driver has
produced the license from Nagaland is not
correct, it is wholly inconsequential."
7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 125

27. There is no quarrel about the
proposition that if it is the Insurers' case
that the driver did not hold a valid driving
licence, the burden of proof is upon the
Insurers to prove it to be so. But, before
that burden can be cast on the Insurers,
there is an onus to be discharged by the
owner of the offending tanker, which
requires him to plead and prove the facts
within his knowledge that the driver was
the man he had authorized to drive the
vehicle, and that, in the owner's belief, he
held a valid driving licence at the time of
the accident. In Pappu and others v. Vinod
Kumar Lamba and another, (2018) 3 SCC
208, this was precisely the question that fell
for consideration of the Supreme Court,
where it was held:

"12. This Court in National
Insurance Co. Ltd. [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] has noticed the
defences
available
to
the
insurance
company under Section 149(2)(a)(ii) of the
Motor Vehicles Act, 1988. The insurance
company is entitled to take a defence that
the offending vehicle was driven by an
unauthorised person or the person driving
the vehicle did not have a valid driving
licence. The onus would shift on the
insurance company only after the owner of
the offending vehicle pleads and proves the
basic facts within his knowledge that the
driver of the offending vehicle was
authorised by him to drive the vehicle and
was having a valid driving licence at the
relevant time."
(emphasis by Court)

28. There are some further remarks in
the context of the facts in Pappu (supra),
which led their Lordships to hold about the
owner's initial burden or the onus probandi
to be discharged about the driver's driving
licence and his authorization to drive the
vehicle before the insurer's burden to dispel
the validity of the driver's licence comes
into existence. These facts are mentioned in
Paragraph No.13 of the report in Pappu,
which read:

"13.
In
the
present
case,
Respondent 1 owner of the offending
vehicle merely raised a vague plea in the
written statement that the offending Vehicle
No. DIL 5955 was being driven by a person
having valid driving licence. He did not
disclose the name of the driver and his
other details. Besides, Respondent 1 did not
enter the witness box or examine any
witness in support of this plea. Respondent
2 insurance company in the written
statement has plainly refuted that plea and
also asserted that the offending vehicle was
not driven by an authorised person and
having valid driving licence. Respondent 1
owner of the offending vehicle did not
produce any evidence except a driving
licence of one Joginder Singh, without any
specific stand taken in the pleadings or in
the evidence that the same Joginder Singh
was, in fact, authorised to drive the vehicle
in question at the relevant time. ...........
Without disclosing the name of the driver
in the written statement or producing any
evidence to substantiate the fact that the
copy of the driving licence produced in
support was of a person who, in fact, was
authorised to drive the offending vehicle at
the relevant time, the owner of the vehicle
cannot be said to have extricated himself
from his liability. The insurance company
would become liable only after such
foundational facts are pleaded and proved
by the owner of the offending vehicle."

29. The later part of Paragraph No.13
of the report in Pappu are again enunciative
of the law about proof of the foundational
126 INDIAN LAW REPORTS ALLAHABAD SERIES
facts that has to be discharged by the owner
before the insurer can be called upon to
discharge his burden about the validity of
the licence. The aforesaid view has been
followed by this Court in Shri Kedar Singh
and also by the Bombay High Court in an
unreported
judgment
in The
Branch
Manager, New India Insurance Co. Ltd. v.
Kausalyabai and others, First Appeal
No.259
of
2003,
decided
on
30th
September, 2022.

30. In this connection, reference may
be made to the decision of the Supreme
Court in Rukmani and others v. New India
Assurance Co. and others, (1998) 9 SCC
160, which was a case arising under the
Motor Vehicles Act, 1939. In Rukmani
(supra), a very brief judgment of their
Lordships, it was observed:

"2. The Insurance Company has
been absolved from liability in respect of
the claim for compensation by the High
Court on the ground that the driver had no
valid licence. The High Court has noted
that under Section 96(2)(b)(ii) of the Motor
Vehicles Act, 1939, if the Insurance
Company contends that the driver of the
vehicle had no valid driving licence, the
burden is on the Insurance Company to
establish it. The High Court, however,
came to the conclusion that this burden had
been
discharged
by
the
Insurance
Company.

3. We have seen the only
evidence which the Insurance Company
produced in support of the plea. This is the
evidence of Inspector of Police who
investigated the accident. In his evidence,
PW 1 who was the Inspector of Police,
stated in his examination-in-chief, "My
enquiry revealed that the 1st respondent did
not produce the licence to drive the
abovesaid scooter. The 1st respondent even
after my demand did not submit the licence
since he was not having it." In his crossexamination he has said that it is the
Inspector of Motor Vehicles who is
required to check whether the licence is
there but he had not informed the Inspector
of Motor Vehicles that the 1st respondent
was not having a licence since he thought it
was not necessary. In our view, this
evidence is not sufficient to discharge the
burden which was cast on the Insurance
Company. It did not summon the driver of
the vehicle. No record from the Road
Transport
Authority
has
also
been
produced. In these circumstances, the
Insurance Company has not discharged the
burden
cast
upon
it
under
Section
96(2)(b)(ii) of the Motor Vehicles Act,
1939. The impugned order of the High
Court is, therefore, set aside and the order
of the Tribunal is restored. The appeal is
allowed accordingly. No order as to costs."

31. The principle in Rukmani is about
the general burden of the Insurance
Company to establish that the driver did not
hold a valid driving licence if they so
allege, but apparently it does not decide the
point about the onus probandi resting on
the owner's shoulders to establish the basic
facts spoken of in Pappu. Therefore, the
judgment in Rukmani would not come to
the owner's rescue in this case on a blanket
basis, unless it be shown that the owner had
established the basic facts about the
validity of the driver's driving licence and
his authorization to drive the offending
tanker.

32. The entire gamut of principles in
United India Insurance Co. Ltd. v. Lehru
and others, (2003) 3 SCC 338, National
Insurance Co. Ltd. v. Swaran Singh and
others, (2004) 3 SCC 297, New India
Assurance Co. v. Kamla and others, (2001)
7 All. National Insurance Co. Ltd., Civil Lines, Allahabad Vs. Sri Satya Narain Kesarwani & Ors. 127
4 SCC 342, and above all Rukmani, lay
down principles in the context of a motor
accident claim, that has the owner before
the Tribunal. In all those cases, one part of
the principle grants a very liberal cover to
the owner, where in the face of a fake
driving licence, the owner comes forward
with a case that he went by the apparent
tenor of the driving licence, that was
produced by the driver before him at the
time of employment and then tested the
driver for his driving skills, which he found
to be reasonably proficient. If the owner
proves the said fact by his testimony before
the Tribunal, a driving licence, howsoever
fake, cannot entitle the insurer to recover.
Nevertheless, before this part of the
protective principle for the owner comes
into play, the other part of it mandates,
what was laid down in Pappu that the onus
would shift to the insurer after the owner
'pleads and proves the basic facts within his
knowledge that the driver of the offending
vehicle was authorized by him to drive the
vehicle and was having a valid driving
licence at the relevant time' to borrow the
words of their Lordships.

33. It is in the context of the aforesaid
principles that the case of parties the way it
is pleaded and sought to be proved requires
examination. The owner did appear before
the Tribunal and filed a written statement.
He did not further appear at the hearing,
testify on oath in the witness box or tender
evidence on affidavit. No doubt, he has
filed some documents with his written
statement, which includes a photostat copy
of the driver's driving licence, the offending
tanker's registration certificate, the national
permit, the five yearly permit, the fitness
certificate and the insurance cover. In
addition, a power of attorney in original
was also annexed to the written statement.
There is not a word in the written statement
filed by the owner that he had seen the
driving licence of the driver before
recruiting him and gone by its apparent
tenor. It is also not pleaded that he had
tested the driving skills of the driver and
found him to be proficient. Nothing of the
kind has been said in the owner's written
statement. Since the owner did not tender
any evidence on affidavit or in the witness
box, it goes without saying that he said
nothing about the driver or his driving
licence.

34. The Insurers on their part have
produced an investigation report written by
their own Investigator dated 02.09.2005,
bearing paper No. 28-Ga, saying that the
driving licence in question was verified
with the Licensing Authority, the R.T.O.,
Bhuj, who has certified that Licence No.
MH0260547, the number carried on the
xerox copy of the licence relied upon by the
owner was issued in the name of one Harsab
Bhai. The report of the Investigator is
accompanied by a certificate of the Regional
Transport Officer, Bhuj, who certifies the
name of the licence holder as Harsab Bhai
with reference to the relative licence number
relied upon by the owner. The documents
produced by the Insurers to dispel the validity
of the licence, if the Insurers indeed bore the
burden, would hardly discharge it. The reason
is that no one was produced from the office
of the R.T.O., Bhuj to prove the the certificate
on which the Insurers rely. But, all these
issues are irrelevant because onus probandi
was never shifted to the Insurers, requiring
them to prove the licence, as the owner never
pleaded the basic facts nor proved them by
his testimony on affidavit or viva voce. The
Insurers' failures are, therefore, irrelevant and
discounted.

35. The other evidence that the owner
has annexed to the written statement and
128 INDIAN LAW REPORTS ALLAHABAD SERIES
about which there is no quarrel, certainly
shows that the vehicle was duly insured and
plied on the basis of valid papers. It is a
case, therefore, where the Insurers cannot
be absolved altogether of their liability, but
must be granted the right to recover from
the owner. It is held accordingly.

36. Now, the other question that arises
is about the compensation, to which the
claimants are entitled. There is a crossobjection
by
the
claimants
seeking
enhancement of the compensation awarded.
The learned Counsel for the claimants
urges that it ought to be enhanced whereas
the learned Counsel for the owner and the
Insurers say in one voice that the Tribunal
has passed a just award. The Tribunal has
worked out the dependency on an income
of the deceased being a sum of Rs.100/- per
day. The evidence on record shows that the
deceased was into the retailing of rice.
There is no reason why the income of any
businessman, of whatsoever scale, should
be rated on a daily basis. The system of
rating income on a daily basis is applicable
to daily-rated labourers, particularly once it
comes to discounting a few days of rest
from the month. This kind of an approach
to the assessment of income is classically
associated with casual labourers who would
not have engagement throughout the days
of the month, and, in any case, would have
to suffer or enjoy a day of holiday at the
weekend or other non-working days. A
businessman of any kind, particularly, a
retailer is not tied down to a daily schedule
of earnings. His income has to be assessed
on a monthly basis or may be for the whole
year, based on a monthly division. The
deceased here was retailing rice moving
about on his bicycle. Therefore, he was a
man who was earning not even in a market
set up that had market regulations about
'closed' days.

37. The deceased was a bachelor and
supporting his parents. The deceased was a
young man in the prime of his life, just 25
years old. The testimony of PW-1, Satya
Narain, the deceased's father clearly shows
that in the examination-in-chief he has
asserted that the deceased would earn
Rs.6000/- per month from his business in
retailing rice. In fact, on the fateful day too,
he was returning back from Phaphamanu
Bazar along with the witness's nephew.