- (1.) This appeal, at the behest of Baij Nath Choudhary, challenges the judgment and award dated 31.5.1995 passed by Motor Accident Claims Tribunal/XIII Additional District Judge, Varanasi (hereinafter referred to as 'Tribunal') in Claim Petition No.157 of 1993 awarding a sum of Rs.87,000/- with 12% rate of interest.
(2.) Brief facts as they emerges go to show that the deceased who was a video operator 22 years of age when he went to Mugalsarai for purchasing goods and on his return a gas tanker bearing No.NLM-5655 dashed him from behind and he died on the spot. The Owner of the gas tanker did not appear in the Court. The Tribunal held that the insurance company would not be liable. though the insurance policy was vogued and there was a valid driving licence. The x-erox copy of the licence and the policy was produced. The photocopy of the insurance policy was also filed by the claimant. The driving licence was also produced but it was objected to by the insurance company.
(3.) This appeal at the behest of claimant requires to be allowed as the vehicle was insured in the year of accident. In view of the judgment of Apex Court in National Insurance Company Ltd. Vs. Jugal Kishore, AIR 1988 SC 719 it was the duty of the insurance company to rebut and or lead evidence so as to prove that the vehicle was not insured with it and that the driver's licnece was a fake driving licence and licence proved that the driver was authorized to drive the vehicle from 17.3.1985 to 9.12.1994 which covers the period of accident namely 21.7.1993. 3.It appears that the owner did not admit before the Tribunal and that was one of the reason that why the Tribunal exonerated the Insurance Company. The Insurance Company was obliged to produce the policy as per the judgment of Apex Court reported in National Insurance Company Ltd. Vs. Jugal Kishore as it is the primary duty of the person in whose custody the document is. Reliance is placed on paragraph 14 of judgment of this High Court in First Appeal From Order No.406 of 1998 ( The Oriental Insurance Company Limited Versus Man Bhawati Devi and others) passed on 15.3.2019 which reads as under : - "14. The learned counsel for the appellant has submitted that the licence was not proved and that photo copy of the said vehicle has been produced and has submitted that photocopy is not admissible in evidence. This submission cannot be countenanced as it is prima facie proved that the vehicle was driven by a person capable of driving the vehicle and it is not proved that the accident was caused by the driver of minibus, who has been held negligent because of non-holding of valid licence. It has not been proved though orally submitted that there was breach of policy conditions. Issue no.3 has been decided against the insurance company by holding that on 27.10.1995, the driver had driving licence whose photocopy is produced and, therefore, it cannot be said that there was no driving licence. It is held by this Court in catena of decisions that strict rules of evidence under the Civil Procedure Code, 1908, cannot be made applicable for defeating the claim of a third party. The Insurance company has not proved anything to the contrary and, therefore, on the touchstone of the provisions of the Section 147 read with 149 of Act, 1988, referred to herein above, the finding cannot be disturbed and the said challenge also fails. " ;