# / v. Brij Pal Singh and another

- **Citation:** (2002) 3 ILRA 778
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-13
- **Case number:** First Appeal From Order No. 378 of 2002
- **Bench:** G.P. Mathur, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-brij-pal-singh-and-another-39992
- **Pages:** 13

## Headnote

Sri V.P. Singh Charak
Sri D.R. Choudhary
Sri R.P. Singh Tomar
Sri Abha Tomar
Sri Shubhra Pareshar

Motor Vehicles Act Section 173/174- it is
still more important to interpret the law
in a manner which has the effect of
preventing the accidents- If the owner is
held liable to pay compensation where
there is breach of specified condition of
policy, it may act as a deterrent and he
may also take effective measures to
prevent
accidents
by
having
a
mechanically sound vehicle which is not
over loaded and a duly licensed and
competent driver. (Held in para)

## Text

_Characters 0–39,819 of 44,113. This is a partial read: ask again with offset=39819 for what follows._

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778 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
than five years have elapsed and the land
lord has not been able to get possession.
This is an additional reason for not
exercising any discretion in favour of
tenant in writ jurisdiction.

21. Learned single Judge has rightly,
in the judgment, stated that District
Magistrate should have accepted the
recommendation of Rent Control and
Eviction officer for issuing Forms-C and
D. Learned single Judge has rightly
observed that the District Magistrate in
refusing
to
issue
Forms-C
and
D
committed error. Non issuance of Form-D
by District Magistrate vide his order dated
21st
May,
2002
has
become
inconsequential in view of the directions
issued by learned single Judge in its
impugned
judgment.
Learned
single
Judge has rightly issued a direction that in
case the appellant fails to vacate the
building in question or undertaking is not
given within the time, the Rent Control
and Eviction Officer/District Magistrate
shall evict the tenant in accordance with
law. We do no find any error in the
judgment of learned single Judge and the
submissions raised by counsel for the
appellant are without any substance.

22. This appeal lacks merit and is
dismissed without any order as to cost..
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2002

BEFORE
THE HON'BLE G.P. MATHUR, J.
THE HON'BLE VINEET SARAN, J.

First Appeal From Order No. 378 of 2002

National Insurance Company Limited

 ...Opposite party/ Appellant
Versus
Brij Pal Singh and another

 ...Claimant/Respondent

Counsel for the Appellant:
Sri A.K. Sinha

Counsel for the Respondents:
Sri V.P. Singh Charak
Sri D.R. Choudhary
Sri R.P. Singh Tomar
Sri Abha Tomar
Sri Shubhra Pareshar

Motor Vehicles Act Section 173/174- it is
still more important to interpret the law
in a manner which has the effect of
preventing the accidents- If the owner is
held liable to pay compensation where
there is breach of specified condition of
policy, it may act as a deterrent and he
may also take effective measures to
prevent
accidents
by
having
a
mechanically sound vehicle which is not
over loaded and a duly licensed and
competent driver. (Held in para)

(Delivered by Hon'ble G.P. Mathur, A.C.J.)

This appeal under Section 17 of the
Motor Vehicles Act has been preferred
against the judgment and award dated
6.1.2002. of Motor Accidents Claims
Tribunal/Additional Judge, Court No. 19,
Meerut, by which the claim petition filed
by Brij Pal Singh (Respondent No. 1) was
allowed
and
the
appellant-Insurance
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3 All] National Insurance Co. Ltd. V. Brij Pal Singh and another 779
Company
was
directed
to
pay
Rs.1,28,400/- as compensation along with
interest at the rate of 9 percent from the
date of filing of the claim petition till the
date of payment.

The appeal was heard for admission
on 15.4.2002 when notice was issued to
the respondents and a direction was issued
to summon the trial court record. In
response to the notice Sri V.P. Singh
Charak and Sri D.R. Chowdhary put in
appearance on behalf of Pramod Kumar
(respondent no. 2). Thereafter with the
consent of the parties, the appeal was
finally heard at the admission stage.

Brij Pal Singh, respondent no. 1,
filed a claim petition on 18.2.1998 under
Sections 140 and 166 of the Motor
Vehicles Act, 1988 (hereinafter referred
to as the Act) impleading Pramod Kumar
and National Insurance Company Ltd.
(hereinafter referred to as the Insurance
Company Ltd. (hereinafter referred to as
the Insurance Company) as opposite
parties to the petition. The case set up in
the claim petition was that on 17.11.1997
the claimant was going to Barot in bus no.
UHN-1082. At about 5.45 P.M. truck no.
DL-1GA-5419 which was being driven
rashly and negligently at a very fast speed
came from the opposite direction. The
truck collided with the bus due to which
two passengers sitting in the bus died and
few
others
including
the
claimant
received injuries. All the injured were
removed to Government Hospital at Barot
where they were provided medical aid.
The claimant subsequently got himself
treated in a private nursing home. He
received fracture in his leg and several
other injuries. According to the claimant
he was 30 years of age and was earning
about Rs.5,000/- per month from the
agriculture and working as conductor of a
bus. It was prayed that an amount or
Rs.3,00,000/- along with the interest at
the rate of 18 percent be awarded as
compensation to him.

Pramod Kumar (respondent no. 2 in
the appeal), who is owner of the truck no.
DL-1GA-5419, filed a written statement
denying in toto the case set up in the
claim petition. In additional pleas, it was
stated that the truck was being driven at a
low speed on the left side and the accident
took place on account of rash and
negligent driving of the bus no. UHN1082. It was further pleaded that the truck
was insured with National Insurance
Company on the date of accident and,
therefore,
the
liability
to
pay
the
compensation was that of the insurer.

The appellant-Insurance Company
also filed a written statement wherein the
case set up in the claim petition was not
admitted and it was pleaded that the
claimant should prove the allegations
made by him. The insurance of the truck
was admitted and also the fact that the
insurance
policy
was
valid
from
26.11.1996 to 25.11.1997. It was also
pleaded that the accident took place due
to the sole negligence of the driver of the
bus. In paragraphs 31 to 33 of the written
statement it was pleaded that without
admitting involvement of the insured
vehicle in the alleged accident and any
liability thereto, the insured illegally
entrusted the truck to a person who did
not hold a valid and effective driving
licence and the insured knowingly and
intentionally committed breach of terms
of conditions of the insurance policy and,
therefore, the insurer is not liable to pay
any compensation. It was also pleaded
that if the insured (owner of the truck)
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780 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
fails to discharge its obligations, or acts in
collusion with the claimants, the insurer
be allowed to contest the petition on all
the grounds available to insured as per
Section 170 of the Act.

Brij Pal Singh, claimant, examined
three
witnesses
and
filed
some
documentary evidence. Pramod Kumar
(owner of the truck) after filing his
written statement did not appear in court
and did not lead any evidence. The
appellant- Insurance Company contested
the petition and moved some applications
etc. reference of which will be given later
on. The Tribunal after consideration of
the evidence on record held that the
accident took place on account of rash
and negligent driving of truck no. DL1GA-5419
in
which
the
claimant
sustained injuries. The claimant had
sustained disability to the extent of 42
percent and his annual income was
Rs.15,000. Applying the multiplier of 18,
it was held that the claimant was entitled
to Rs.1,13,400/- as compensation. Besides
this amount, a sum of Rs.10,000/- was
awarded towards medical expenses and
Rs.5000/- towards mental pain. On these
findings, the claim petition was allowed
and the appellant insurance company was
directed to pay Rs.1,28,400/- along with
interest at the rate of 9 percent from the
date of presentation of the claim petition
till the date of payment to the claimant.

Feeling aggrieved by the judgement
and award of the claims Tribunal, the
Insurance Company has preferred this
appeal under Section 173 of the Act. Sri
A.K. Sinha, learned counsel for the
appellant, has submitted that after filing
of the written statement the owner of the
truck did not at all appear in the
proceedings before the Tribunal and did
not lead any evidence, which clearly
showed that there was collusion between
him and the claimant Brij Pal Singh. Sri
Sinha has also urged that the evidence on
record clearly showed that the accident
took place on account of rash and
negligent driving of the bus in which the
claimant was travelling as a passenger and
the said accident did not take place on
account of any fault of the driver of the
truck.
Learned
counsel
has
further
submitted that there was a breach of
specified
condition
of
the
policy
inasmuch as the truck was being driven
by a person who was not duly licensed
and, therefore, the appellant-Insurance
Company is not liable to satisfy the award
passed by the Claims Tribunal. Sri V.P.
Singh Charak, learned counsel for Pramod
Kumar, respondent no. 2 (owner of the
truck), has submitted that the accident did
not take place on account of fault of the
driver of the truck but took place on
account of rash and negligent driving of
the bus by its driver and, therefore, no
award should have been made in favour
of
the
claimant.
Sri
Charak
also
challenged the submission made by the
learned counsel for the appellant (insurer)
that the Insurance Company was not
liable to satisfy the award. Learned
counsel has submitted that there was no
breach of any specified condition of the
insurance policy and, therefore, the
appellant Insurance Company is liable to
satisfy the award.

The claimant examined himself as
PW 1 and stated that on 17.11.1997 he
was going to Barot in bus no.UHN-1082.
At about 6 P.M., truck no. DL-1GA-5419
came from the opposite direction at the
speed of 80-90 kms. Per hour and dashed
against the side of the bus. The bus was
being driven at the speed of 0-5 kms per
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3 All] National Insurance Co. Ltd. V. Brij Pal Singh and another 781
hour but the driver of the truck was
driving his vehicle rashly and negligently.
In the accident many people received
injuries, and two persons died on the spot.
The people of the village carried the
injured to Government Hospital, Barot.
He was subsequently admitted in a
nursing home where he remained as
indoor
patient
till
20.11.1997.
He
sustained injuries in his leg. He further
stated
that
his
income
was
about
Rs.5,000/- from agriculture and working
as conductor of a bus. He was crossexamined by the counsel for the Insurance
Company wherein he reiterated that the
truck was being driven rashly and
negligently at the speed of 80-90 Kms.
per hour. Nothing material was brought
out in his cross-examination to cast doubt
on his testimony.

Another
passenger,
Balesh
@
Baleshwar, was examined by the claimant
as PW 2. He stated that on 17.11.1997 he
was going from Shamli to Barot. At about
6 p.m. truck no. DL-1GA-5419 came
from the side of Barot at a very fast speed
of 80-90 kms and dashed against the side
of bus no. UHN-1082 which was coming
from the opposite direction at the speed of
0-5 kms per hour. Due to accident two
persons died on the spot and 15-16
persons including him and the claimant
Brij Pal Singh received injuries. Both he
and Brij Pal Singh were taken to the Barot
hospital for treatment. He has also filed a
claim petition claiming compensation for
the injuries received by him. In his cross-
examination he denied the suggestion that
the accident did not take place on account
of rash and negligent driving of the driver
of the truck. The third witness examined
by the claimant is PW, Dr. S.M. Sharma,
Senior Orthopedic Surgeon, in P.L.
Sharma Hospital, Meerut. He examined
the claimant on 9.2.1999 and advised for
x-ray examination of his left leg. On the
basis of the x-ray report, he opined that
the claimant had suffered 42 percent
disability. It is noteworthy that the
claimant did not examine the doctors who
had attended to his injuries soon after the
accident. Sri Sharma examined him after
more than one year on 9.2.1999.

The claimant also adduced some
documentary evidence in support of his
case. He filed copies of the F.I.R. of Case
Crime No. 517 of 1997 of P.S. Barot,
copy of the charge-sheet, copy of the siteplan prepared by the investigating officer
and some other documents.

We have given above the gist of the
evidence which is available on the record.
Both PW 1, the claimant, and PW 2,
Baleshwar, were travelling in the ill-fated
bus and had received injuries in the
accident. They are therefore, the best
witnesses to depose about the manner in
which the accident took place. Both of
them have stated that the bus was being
driven at the speed of 0-5 kms per hour
while the truck no.DL-1GA-5419 was
being driven rashly and negligently at the
speed of 80-90 kms per hour and the
accident took place on account of the fault
of the driver of the truck. It is, therefore,
fully
established
that
the
claimant
received injuries on account of rash and
negligent driving of the truck driver.
Learned counsel for the appellant has not
been able to point out any error in the
amount of compensation determined by
the Tribunal. We are, therefore, in
agreement with the view taken by the
Tribunal that the claimant-respondent
no.1 is entitled to Rs.1,28,400/- as
compensation. He is also entitled to
interest at the rate of 9 percent from the
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782 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
date of filing of the petition till the date of
payment.

Sri A.K. Sinha, learned counsel for
the appellant, has vehemently urged that
the
insurance
policy
of
the
truck
contained a clause that the Insurance
Company will be liable to satisfy the
award only if at the time of accident it
was being driven by a person who was
duly licensed and since the appellantInsurance Company had taken a specific
plea in the written statement filed by it
that the driver of the truck was not duly
licensed and Pramod Kumar, respondent
no. 2 (owner of the truck) neither
disclosed the name of the driver nor led
any evidence to show that he was duly
licensed, the appellant was not liable to
satisfy the award made by the Tribunal.
Sri Sinha has contended that under
Section 149 (2) (a) (ii) of the Act, the
insurer is entitled to be made a party to
defend the action on the ground that there
has been a breach of the specified
condition of the policy, namely, the
condition excluding the driving by any
person who is not duly licensed. In
paragraph 31 of the written statement
filed by the appellant a plea had been
taken that the insured entrusted the
vehicle to a person who had no effective
and valid driving licence. Inspite of this
specific plea, the owner of the truck led
absolutely no evidence to show that the
driver of the truck was holding a valid
driving licence. In fact, after filing of the
written statement the owner of the truck
did
not
at
all
participate
in
the
proceedings of the case and did not even
disclose
the
name
of
the
driver.
According
to
Sri
Sinha,
in
such
circumstances a presumption has to be
drawn that the driver of the truck was not
duly licensed and no award could be
made against the appellant-Insurance
Company.

Paragraphs 31 and 32 of the written
statement of the Insurance Company read
as follows:-

"31.

That
without
admitting
involvement of insured vehicle in the
alleged accident and any liability, it is
submitted that at relevant time of alleged
accident, the insured entrusted the insured
vehicle to a person to drive the insured
vehicle illegally who has not held a valid
and effective driving licence to drive the
insured
vehicle
with
necessary
endorsement. Thus the insured knowingly
and intentionally had committed breach of
terms & conditions of insurance policy
and the answering OP is not liable to pay
any compensation, if any,

32. That in continuance of the
proceedings, if it is being revealed that
insured has not discharged his obligations
or failed to contest the petition or is in
collusion
with
petitioner,
then
the
answering OP deserved to be allowed to
contest the petition on all grounds
available to insured as per Sec. 170 of the
Motor Vehicles Act, 1988."

The appellant-Insurance Company
also moved an application (paper no. 52ga) stating that the owner of the truck has
not been appearing in the court and has
completely failed to contest the case on
merits and, therefore, as provided under
Section 170 of the Act, the appellantInsurance company may be allowed to
contest the case on merit on all the
grounds
that
are
available
to
the
owner/insured.
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3 All] National Insurance Co. Ltd. V. Brij Pal Singh and another 783

Sub section (1) of Section 149 of the
Act lays down that if, after a certificate of
insurance has been issued under subsection (3) of Section 147 in favour of the
person by whom a policy has been
effected, judgement or award in respect of
any such liability as is required to be
covered by a policy in clause (b) of subsection (1) of Section 147 (being a
liability covered by the terms of the
policy) or under the provisions of Section
163-A is obtained against any person
insured
by
the
policy
then,
notwithstanding that the insurer may be
entitled to avoid or cancel or may have
avoided or cancelled the policy, the
insurer shall, subject to the provisions of
this section, pay to the person entitled to
the benefit of the decree any sum not
exceeding the sum assured payable
thereunder, as if he were judgment debtor
in respect of the liability. Sub section (2)
of Section 149 lays down that no sum
shall be payable by a insurer under subsection (1) in respect of any judgment or
award unless, before the commencement
of the proceedings, the insurer had notice
through the court or the Claims tribunal of
the bringing of the proceedings. It further
provides that an insurer to whom notice as
aforesaid has been given shall be entitled
to be made a party and to defend the
action on any of the grounds enumerated
in clauses (a) and (b) it is, therefore, clear
that subsection (2) of section 149 gives a
right to the Insurance Company to defend
the action. It is no doubt not open to the
Insurance Company to take any kind of
plea for defending the action but the same
must be confined to the kinds enumerated
in clauses (a) and (b) of sub-section (2) of
Section 149. Sub-clauses (ii) of clauses
(a) of sub-section (2) of Section 149 of
the Act clearly gives a right to the
Insurance Company to defend the claim
petition on the ground that the vehicle
was being driven by a person who was not
duly
licensed.
Therefore,
if
it
is
established that the vehicle, by which the
accident has been caused, was being
driven by a person who was not duly
licensed, then the Insurance Company
would not be liable to satisfy the award.
Section 170 of the Act provides that if the
Claims Tribunal is satisfied that there is a
collusion between persons making the
claim and the person against whom the
claim is made, or the person against
whom the claim is made has failed to
contest the claim, it may, for reasons to be
recorded in writing, direct that the insurer
who may be liable in respect of such
claim, shall be impleaded as a party to the
proceedings and the insurer so impleaded
shall thereupon have, without prejudice to
the provisions contained in sub-section
(2) of Section 149, the right to contest the
claim on all or any of the grounds that are
available to the person against whom the
claim has been made. This section is an
exception , to sub section (2) of Section
149, which gives only a restricted right to
the Insurance Company to contest and
defend a claim petition as the said right is
circumscribed by clauses (a) and (b) of
sub-section (2). Under Section 170 if the
Tribunal is satisfied that there is a
collusion between the person making the
claim and the owner of the vehicle or the
owner of the vehicle has failed to contest
the claim, the Insurance Company so
impleaded shall have the right to contest
the claim petition on all or any of the
grounds that are available to the owner of
the vehicle.

It may now be examined whether in
view of the pleadings of the parties and
the evidence available on the record, a
finding can be recorded on the question
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784 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
whether the driver of the truck was duly
licensed or not. As mentioned earlier, the
appellant-Insurance Company took a
specific plea in the written statement that
the driver of the truck was not duly
licensed. Pramod Kumar, respondent no.
2 (owner of truck) in his written statement
did not state a single word whether the
driver of the truck was duly licensed and
even the name of the driver of the truck
was not disclosed. There is not even a
whisper about the driving licence of the
person who was driving the truck at the
time of accident. In fact, the owner did
not lead any evidence before the
Tribunal.

Sri V.P. Singh Charak, learned
counsel for the owner of the truck, has
submitted that the burden to establish that
the driver of the truck was not duly
licensed
was
upon
the
Insurance
Company and the Insurance Company
having failed to lead any evidence on this
point, it must be held that the driver of the
truck was not duly licensed. In our
opinion, having regard to the scheme of
the Motor Vehicles Act and the ground
realities, it will be wrong to decide the
issue on general principle contained in
Sections 101 and 102 of Evidence Act,
namely, who would fail if no evidence at
all was given on the either side. Section 3
of the Motor Vehicles Act provides that
no person shall drive a motor vehicle in
any public place unless he holds an
effective driving licence. Section 4 gives
the age limit for driving which is 18 years
for ordinary motor vehicle and 20 years
for a transport vehicle. Therefore, any
person above the age of 20 years can
obtain a licence to drive a transport
vehicle. Section 9 gives the procedure for
grant of driving licence and it provides
that any person, who is not for the time
being
disqualified
for
holding
or
obtaining a driving licence, may apply to
the licensing authority having jurisdiction
in the area in which he ordinarily resides
or carries on business, or in which the
school or establishment referred to in
section 12 from where he is receiving or
has received instruction in driving a motor
vehicle is situated, for the issue to him of
a driving licence. Therefore, a person can
obtain a driving licence by making an
application to the appropriate licensing
authority anywhere in the country. Under
Section 14, the driving licence to drive a
transport vehicle is effective for three
years and section 15 provides for renewal
of a driving licence. There does not
appear to be any specific provision
prescribing the maximum age for grant of
a licence. The licence can no doubt be
revoked under section 16 if the licensing
authority has reasonable grounds to
believe that the holder of the driving
licence is, by virtue of any disease or
disability, unfit to drive the motor vehicle.
These
provisions
show
that
after
obtaining a licence to drive a transport
vehicle at the age of 20 years, a person
may continue to have a licence renewed
until
the
licensing
authority
has
reasonable grounds to believe that by
virtue of any disease or disability he is
unfit
to
drive
the
motor
vehicle.
Therefore, in normal course, a person
after attaining the age of 20 years can
continue to have his licence renewed till
the age of 50 or 60 even thereafter. In
view of Section 13 of the Act a driving
licence shall be effective through out
India. A person having obtained a driving
licence
in
Arunachal
Pradesh
or
Dibrugarh in Assam can drive a vehicle in
Kanya Kumari or anywhere in India.
Therefore, even if the name and address
of the driver is disclosed it is absolutely
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3 All] National Insurance Co. Ltd. V. Brij Pal Singh and another 785
impossible for a third person to find out
and lead evidence whether he holds a
valid driving licence or not unless
complete details viz. the date of issue and
number of the licence is given. Section
106 of the Evidence Act lays down that if
any
fact
is
especially
within
the
knowledge of any person, the burden of
proving that fact is upon him. Illustration
(b) of this Section is -'A' is charged with
travelling on a railway without ticket. The
burden of proving that he had a ticket is
on him. There cannot be even a slightest
doubt that holding of a driving licence is
especially within the knowledge of the
person concerned as no one else can have
the knowledge of the said fact. This will
be more so in situations covered by
section 149 of the Act as the Insurance
Company cannot have any knowledge
regarding the driving licence of the driver
of the vehicle which is involved in an
accident. Therefore, the burden to prove
that the driver of the vehicle had a valid
driving licence is upon the owner of the
vehicle and not upon the Insurance
Company.

Though in a criminal case the general
rule is that the burden of proof is on the
prosecution but if any fact is especially
within the knowledge of the accused, he is
to lead evidence to prove the said fact. In
Shambhu Nath Mehra vs. The State of
Ajmer, AIR 1956 SC 404, it was held as
follows :

"Section 106 is an exception to S.
101. The latter with its illustration (a) lays
down the general rule that in a criminal
case the burden of proof is on the
prosecution and S. 106 is certainly not
intended to relieve it of that duty. On the
contrary, it is designed to meet certain
exceptional cases in which it would be
impossible,
or
at
any
rate
disproportionately
difficult,
for
the
prosecution to establish facts which are
'especially' within the knowledge of the
accused and which he could prove
without difficulty or inconvenience. The
word 'especially' stresses that. It means
facts
that
are
pre-eminently
or
exceptionally within his knowledge.'
In collector of Customs, Madras and
others vs. D. Bhoormull, AIR 1974 SC
859, proceedings were initiated under
section 167 (8) (c) of the Customs Act for
confiscation of contraband or smuggled
goods and it was observed as under :

"...Since it is exceedingly difficult, if
not
absolutely
impossible
for
the
prosecution to prove facts which are
especially within the knowledge of the
accused, it is not obliged to prove them as
part of its primary burden"'
(para 31)
"...On the principle underlying S.
106 Evidence Act, the burden to establish
those facts is cast on the person
concerned, and if he fails to establish or
explain
those
facts,
an
adverse
interference of facts may arise against
him, which coupled with the presumptive
evidence adduced by the prosecution or
the Department would rebut the initial
presumption of innocence in favour of
that person, and in the result prove him
guilty."
(para 32)

In State of West Bengal Vs. Meer
Mohd. Umar 2000 (8) SCC 382, it was
held that the legislature engrafted special
rule in Section 106 of the Evidence Act to
meet certain exceptional cases in which
not only it would be impossible but
disproportionately
difficult
for
the
prosecution to establish such facts which
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786 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
are specially and exceptionally within the
exclusive knowledge of the accused and
which he could prove without difficulty or
inconvenience.
This
principle
was
reiterated in Sanjai @ Kaka vs. State
(NCT of Delhi), (2001) 3 SCC 190, and
Ezhil and others vs. State of Tamilnadu,
JT 2002 (4) SC 375.

In R. v Oliver, 1943 All. E.R. 800,
the accused was charged with having sold
sugar as whole sale seller without the
necessary licence. It was held that
whether the accused had a licence was a
fact peculiarly within his own knowledge
and proof of the fact that he had a licence,
lay upon Firm. It also further held that in
the circumstances of the case of the
prosecution was under no necessity to
give prima facie evidence of nonexistence of a licence. In this case
reference is made to some earlier
decisions and it will be useful to notice
the same. In R. v. Turner, (1816) 5 M & S
206=14 Digest 430, the learned Judge
observed as follows :

"I have always understood it to be a
general rule, that, if a negative averment
be made by one party, which is peculiarly
within the knowledge of the other, the
party within whose knowledge it lies and
who asserts the affirmative, is to prove it,
and not he who avers the negative."

In Williams Vs. Russel, (1993) 149
LT 190, the learned Judge held as under:

"On the principle laid down in R v
Turner and numerous other cases where it
is an offence to do an act without lawful
authority, the person who sets up the
lawful authority must prove it and the
prosecution need not prove the absence of
lawful authority. I think the onus of the
negative averment in this case was on the
accused to prove the possession of the
policy required by the statute."

The principle discussed above would
be fully applicable here and the burden of
proof that the driver of the truck had a
valid and effective driving licence would
be entirely upon the owner of the truck.
The said burden can never be shifted to
the Insurance Company, as it cannot be
asked to discharge a negative burden with
regard to a fact which is especially within
the knowledge of the driver who is an
employee of the owner of the vehicle.

Section 114 of the Evidence Act
provides that the courts can presume
existence of certain facts. Illustration (g)
of this section is material and it provides
that the court may presume that evidence
which could be and is not produced
would, if produced, be unfavorable to the
person who withholds it. In Gopal
Krishnaji Ketkar Vs. Mohamed Haji Latif
and others, AIR 1968 SC 1413, it was
held as under :

"Even if the burden of proof does not
lie on a party the Court may draw an
adverse
inference
if
he
withholds
important documents in his possession
which can throw light on the facts at
issue. It is not, in our opinion, a sound
practice for those desiring to rely upon a
certain state of facts to withhold from the
Court the best evidence which is in their
possession which could throw light upon
the issues in controversy and to rely upon
the abstract doctrine of onus of proof. In
Murugesam Pillai v. Ghana Sambandha
Pandara Sannadhi, 44 IInd App 98 p. 103
= (AIR 1917 PC 6 at p. 8) Lord Shaw
observed as follows :
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3 All] National Insurance Co. Ltd. V. Brij Pal Singh and another 787
A practice has grown up in Indian
Procedure of those in possession of
important documents or information lying
by, trusting to the abstract doctrine of the
onus of proof, and failing, accordingly, to
furnish to the Courts the best material for
its decision. With regard to third parties,
this may be right enough- they have no
responsibility for the conduct of the suit,
but with regard to the parties to the suit it
is, in their Lord ships' Opinion, an
inversion of Sound practice for those
desiring to rely upon a certain state of
facts to withhold from the Court the
written evidence in their possession which
would throw light upon the proposition.'

In National Insurance Company Ltd.
Vs. Jugal Kirshore and others, (1988) 1
SCC 626, it was held that it is 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. In
United India Insurance Co. Ltd. vs. Gyan
Chand (1997) 7 SCC 558, the Tribunal
had recorded a finding that respondent no.
1 in the appeal was not having any driving
licence. It was held that the insured
(owner of the vehicle) did not step in the
witness box to prove his case, an adverse
inference necessarily had to be drawn
against him to the effect that the vehicle
had been handed over by him for being
driven
by
an
unlicensed
driver
(respondent No. 1). It was further held
that in these circumstances the insurance
company would get exonerated from its
liability to meet the claims of the third
party who might have suffered on account
of vehicular accident caused by such
unlicensed driver.

Sri V.P. Singh Charak, learned
counsel for respondent no. 2 (owner of the
vehicle) has placed reliance on Manohar
Jamamal Sondhi Vs.Ranguba, 1994-ACJ
1288, United India Insdurance Co. V
Matdig Thappeta Ramakka, 1995 ACJ
358, Surjeet Singh Vs. Heera Lal, II
(1996) ACC 443 and Oriental Insurance
Company vs. Teerath Kaur, I (1994) ACC
226. These are decisions of the different
High Courts wherein it has been held that
the onus of proof that the person driving
the offending vehicle at the relevant time
did not hold a valid driving licence, rests
upon the insurer and the only way of
discharging this onus is by the insurer
leading positive evidence to the effect that
the person driving the vehicle did not
possess a driving licence. In none of these
decisions, the provisions of the Motor
Vehicle Act to the effect that anyone
above the age of 20 years can obtain a
licence from a licensing authority and can
drive the vehicle anywhere in India, were
considered,
nor
the
question
was
examined deeper that in absence of any
particulars of the licence having been
given by the driver or the owner of
offending
vehicle
it
is
absolutely
impossible for the insurance company to
lead evidence to show that the driver did
not possess a valid driving licence. The
holding of a valid driving licence, being
especially within the knowledge of the
driver, the burden lay upon him to prove
the said fact in view of the clear
provisions of Section 106, Evidence Act,
was also not considered. For the reasons
indicated earlier, we are unable to accept
the principle laid down in the above -
mentioned cases.

Pramod Kumar, respondent no. 2
(owner of the truck) having not produced
the driving licence of the driver of the
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788 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
truck, it must be held that he had no valid
driving licence. In view of this finding,
the appellant- Insurance Company is not
legally liable to satisfy the award given
against the owner of the vehicle.

We are, however, of the opinion that
having regard to the object for which
Chapters XI and XII of the Motor
Vehicles Act were enacted and the
conditions under which victims of road
accidents are placed in this country, it will
not be proper course of action to just
allow the appeal and set aside award of
the Tribunal rendering the claimant
helpless. A practical solution of the
problem has to be found out.

As mentioned earlier under Section
149 of the Act the insurer (Insurance
Company) is liable to pay to the person
entitled to the benefit of the decree a sum
not exceeding the sum assured thereunder
as if he was the judgment-debtor. The
claim petition is an action in tort which is
basically against the owner of the vehicle
which has caused the accident. The
claimant cannot possibly know whether
the vehicle was insured or not, and if so,
who was the insurer. Normally, it is the
owner of the vehicle who comes out with
a case that the vehicle was insured and
there was no breach of conditions of the
policy so that the award given against him
may be satisfied by the insurer. Therefore,
there must be an award against the owner,
so as to attract Section 149 of the Act and
liability may be fastened upon the insurer
to pay the amount to the person entitled to
the benefit of judgment and award. In the
present case, the Tribunal has not passed
any award against Pramod Kumar, the
owner of the truck. However, this error
can be easily rectified under order 41
Rule 33 Code of Civil Procedure. The
operative portion of the order passed by
the Tribunal is accordingly modified and
the claim petition is allowed against both
the opposite parties, namely, Pramod
Kumar (owner of vehicle) and National
Insurance Company Ltd.

The victim of an accident may find it
extremely difficult to recover the amount
from the owner of the vehicle. He may be
having his place of business or residence
at a place which is far away from the
place of accident or the place where the
tribunal which gave the award is situate.
It is possible that he may be residing in a
different state. Looking to the practical
problems involved in such a case, the
claimant may not be able to execute the
award against the owner and may not get
any compensation . In order that prompt
payment of the compensation amount is
made to the claimant, we consider it just
and proper that the Insurance Company
should pay the amount awarded by the
Tribunal to the claimant and, thereafter
the Insurance Company should be entitled
to recover the amount from the owner in
accordance with Section 174 of the Act.
The Insurance Companies have their
offices throughout India and have the
necessary resources to pursue the mater
even in a different state. By this course of
action, their interests would not be
prejudiced.

It is common knowledge that there
are frequent road accidents in India in
which large number of people lose their
lives, or become maimed or permanently
disabled.
No
amount
of
monetary
compensation can bring solace to a family
which has lost one of its members or
relieve the pain or sufferings of a person
who has been maimed or permanently
disabled.
Award
of
monetary
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3 All] National Insurance Co. Ltd. V. Brij Pal Singh and another 789
compensation may help in tiding over the
financial problems in a small manner
where the main bread earner has died.
One of the main objects of the Motor
Vehicles Act is to lay emphasis on the
road safety standards and the need for
effective ways of tracking down the
traffic offenders. The law regarding the
grant of compensation to the victims of
the road accidents has, over the years,
developed in a manner so as to ensure
payment of compensation to the victims
of the accidents. But it is still more
important to interpret the law in a manner
which has the effect of preventing the
accidents. As the law stands today, no
liability of any kind, civil or criminal, is
fastened on the owner of the vehicle
which has caused the accident. The
criminal liability is fastened only on the
driver who is a poorly paid employee. The
vehicles are often not mechanically
sound, their steering system is bad, the
brakes do not work and they cannot be
easily maneuvered on the road. They are
often overloaded, which makes the task of
the driver still more difficult. The owners
often ask the drivers to drive fast so that
the vehicle may cover the distance faster
and may make greater number of trips.
The drivers are overworked and they are
compelled to drive for long hours. Section
91 of the Act provides that hours of work
of any person engaged for operating a
transport vehicle shall be such as provided
in the Motor Transport Workers Act,
1961. However, scant regard is paid to
this provision. The overworked drivers
sometimes hand over the control of the
vehicle to the cleaners, who have either
no licence or have no experience of
driving
a
transport
vehicle.
Our
experience shows that in claim petitions
some sort of practice has developed in the
State of U.P. where inspite of service of
summons, either the owner does not put in
appearance or after filing a written
statement does not participate in the
proceedings and does not give any
particular of the licence of the driver of
the vehicle and the main reason for this is
that the award is given only against the
insurance company and not against the
owner.