1. Appeal under Section 173 of Motor Vehicles Act is preferred against the impugned award dated 07.02.2006 passed by Motor Accident Claim Tribunal/Additional District and Sessions Judge, Gonda.
2. On 28th May, 2000 at about 8:30 P.m. when deceased and his son were crossing a over-bridge of Balrampur to Gonda road, Truck No. U.P. 43A/5377 driven the Truck rashly and negligently hit the deceased consequent to which the deceased succumbed injuries and died on the spot. The driver of the the said truck ran away leaving the Truck on the spot. An F.I.R. was lodged; thereafter a claim petition was filed before the Claim Tribunal for payment of compensation on behalf of the claimant. The Tribunal framed issues with regard to the accident occurred on 28th May, 2000 at about 8:00 p.m. and with regard to the Insurance Company and driver and also the policy conditions.
3. On behalf of the claimants, the witnesses Smt. Prabha Devi(PW-1), Suresh Kumar(PW-2) and Hari Ram(PW-3) were appeared whereas on behalf of the respondents Sri Prabhat Shukla, Advocate (OPW-1), N.C. Sharma, Administrative Officer 2
4. On behalf of United India Insurance Company and Kuldeep Singh (OPW-3) appeared.
5. Apart from the oral and documentary evidence including F.I.R., post-mortem report, charge-sheet etc, were filed. The Tribunal after perusing the record and evidence lead by the parties, arrived at the conclusion that the said accident had occurred at the aforesaid time and place.
6. In para 13 of the award given by the tribunal finding recorded that the driver of the vehicle was having driving licence which was disputed by the learned counsel for the respondent-Insurance Company. When the factum with regard to the validity of the driving licence said to have been verified by the office of Regional Transport Officer, the tribunal was informed that because of fire the record are not available. From the perusal of the original record, it is also reveals that it was prepared subsequently in the year, 2004 by the Transport Department. So far as the availability of driving licence on the date of accident i.e. 28.05.2000 is concerned, it cannot be certified by the transport department. However, keeping the fact that the driving licence filed by the appellant before the tribunal shows that it was prepared in the year, 1987 and so far as the renewal of licence is concerned, it could not be verified due to fire in the office of the transport department.
7. Submission made by the learned counsel for the appellants' is that burden of proof that driver was not possessing any driving licence at the time of accident was on the shoulders of Insurance Company. He relied upon the judgments reported in Rukmani and others v. New India Assurance Company and others, 1999 SCD, page 324 where it was held that burden of proof under Section 96(2)(b) (ii) of the Motor Vehicles Act, 1939 was on Insurance Company.
8. Under the Evidence Act also burden of proof is on the person who alleges the existence of a certain fact. Accordingly in case the defense is taken by the Insurance Company that driver was not having any driving licence and copy of the driving licence filed by the appellant is not being disputed and genuine, the presumption may be raised in favour of the driver that he was having driving licence.
9. The documentary evidence can be proved by the primary and secondary evidence under Section 62 and 63 of the Evidence Act. In case, the driving licence could not be verified because of fire in the transport office then, the burden was on the respondent-Insurance Company to prove its defence by the secondary evidence. In the present case, attention of the Court has not been drawn to any material on record which may establish that the Insurance Company had discharged its obligation to prove the fact that the driver did not possess any driving licence.
10. Section 103 of the Indian Evidence Act provides that the burden of proof to prove any particular fact lies on that person who shows the court to believe in its existence, In the present case, learned counsel for the appellants filed a copy of the driving licence which was issued in the year, 1987 and because of fire in transport office, it could not be verified from the original record then burden was on the respondent-Insurance Company to establish that the driver was not having driving licence by leading secondary evidence.
11. In our view above, the presumption may be drawn that driver was having driving licence on the date of occurrence. On failure to lead evidence on the part of the Insurance Company to establish that the driver was not holding a valid licence on the date of accident, plea of claimant may be accepted. Reliance has been placed by the learned counsel for the respondents on the case reported in [2008 AICC 919] SC 4
12. Oriental Insurance Company Ltd. v. Syed Ibrahim and others does not seems to applicable under the facts and circumstances of the present case. In the case of Syed Ibrahim, Their Lordships have held that in the events of violation of conditions that there was no valid driving licence the Insurance Company shall not liable to pay compensation, but this judgment does not deals with the circumstances of the present case.
13. Further, learned counsel for the respondents relied on the judgment reported in 2008(4) T.A.C. 378 (S.C.) SC National Insurance Co.Ltd. v. Vidhyadhar Mahariwala and others, related to the renewal of driving licence, not applicable in the present case.
14. In our view, burden shifted by the learned Tribunal on the owner/appellants to pay the compensation seems to be not correct. There is no breach of condition and since driver possessed the driving licence, Insurance Company shall liable to pay compensation.
15. No other question or ground has been raised by either of the parties. Finding recorded by the tribunal and other point seems to be well appreciated facts on record. In view of the above, appeal is allowed in part.
16. Impugned award dated 07.05.2006 stands modified holding that the respondent-Insurance Company i.e. United India Insurance Company shall be liable to pay the compensation in terms of the award dated 07.05.2006.