THE HON’BLE SRI JUSTICE V.V.S. RAO CIVIL MISCELLANEOUS APPEAL No.2023 of 1999 12.11.2009 Between: New India Assurance Co. Ltd., represented by its Branch Manager, Weekly Market Road, Kamareddy District … Appellant and Smt.P.Raju Bai, W/o.late P.Devanna And others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO CIVIL MISCELLANEOUS APPEAL No.2023 of 1999 ORDER: Purra Mendu Devanna, husband of first respondent and father of respondents 2 and 3 herein, died in a motor accident. On 22.1.1994 when he was travelling in the Jeep bearing No.AIL 4948 from Vennel(B) village towards Armoor, and when they reached Srirampur village, (lorry) bearing No.AP 25T 1177 driven in a rash and negligent manner and hit the jeep. Devenna and some others died on the spot. The wife and children of Devanna filed O.P.No.451 of 1994 before the Motor Accidents Claims Tribunal-cum-District Judge, Nizamabad. They claimed a compensation of Rs.3,00,000/-. Claim petition was opposed by insurer–appellant herein; on the ground that driver of motor vehicle had no valid driving licence, and therefore, there is breach of condition of policy, which is a valid ground to seek exemption from liability under Section 149(2)(a)(ii) of Motor Vehicles Act, 1988 (the Act, for brevity). Evidence was let in by both the parties. Insurer marked Xerox copies of Exs.B3 insurance policy, Ex.B10 driving licence, Exs.B11 to B13 letters of communication. Learned Tribunal came to the conclusion that as insurer failed to summon any official from the office of RTA to prove Exs.B3 and B10, they cannot be treated as invalid documents. Overruling the objection of appellant and considering the material on record, learned Tribunal came to the conclusion that the drivers of both the vehicles are responsible for the accident and accordingly awarded a sum of Rs.2,15,000/-. Learned Tribunal directed the owners and insurers of respective vehicles to pay compensation 50% each. Aggrieved by the award, insurer of lorry bearing No.AP25T 1177 preferred the present appeal. Learned Counsel for appellant mainly contends that when breach of conditions of policy is alleged, insurer has to prove such breach and that by adducing oral and documentary evidence, insurance company has discharged the burden. The submission cannot be accepted. I n National Insurance Co. Ltd v Swaran Singh[1], Supreme Court interpreted Section 149(2)(a)(ii) of the Act and inter alia laid down following principle. (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. I n United Insurance Co. Ltd v M. Gangaratnam alias Ratnamma[2] dealing with similar question, it was observed as under. Relevant observations are as follows. The rulings of the Supreme Court and the High Courts would show that whenever he insurer claims that the Driver of the offending vehicle was not having valid and effective licence as on the date of the accident, they have to prove the same by cogent and acceptable evidence. Mere producing a letter or endorsement from the Regional Transport Officer/Authority or any licensing authority that the licence relied on is not valid licence or effective licence would not amount to discharging the burden. The allegation that the Driver was not having valid licence or effective licence and therefore the Insurance Company stands exonerated from the policy obligations has to be proved by examining officials who gave endorsement or certificate with reference to the records maintained in the office of the licensing authority. In the absence of any driving licence it is always open to the insurer to get necessary records summoned from the office of the licensing authority and prove the documents by examining the licensing authority or a representative of the licensing authority. Mere filing of Xerox copy of the driving licence or endorsement to the effect that the Driver was not having valid licence would not suffice to discharge the burden. In case, insurer pleads that the licence produced before the Tribunal is fake licence, it is for the insurer to summon the owner or the Driver or appropriate authorities in licensing organization and examining them to prove that the licence relied on is fake licence. The claimants, who are third parties to the insurance policy cannot be burdened with proving allegations of the insurer that as Driver was not having valid licence they have to be exonerated from the liability. In this case, as rightly observed by learned Tribunal none connected with RTA was examined, and therefore, appellant did not discharge burden required under law to prove allegation that driver of offending vehicle had no valid licence. However, in view of the fact that appellant was made liable to pay compensation to the extent of 50% payable to claimants, the appellant shall deposit the same and recover the same from owner of vehicle, fourth respondent herein. The Civil Miscellaneous Appeal, with the above observations, is accordingly disposed of. No costs. _____________ (V.V.S.RAO, J) November 12, 2009 YS [1] (2004) 3 SCC 297 = AIR 2004 SC 1531 [2] 2003(3) ALD 328