IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 344 of 2004 Date of Decision: 4th August, 2008 Surender Singh Appellant Versus Smt. Jai Manti Devi and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Bimal Gupta, Advocate. For the respondents: M/s Sunil Chauhan and Rupinder Singh, Advocates, for respondents No.1 to 4. Mr.G.D.Sharma, Advocate, for respondent No.5. Sanjay Karol, J. (Oral) The present appeal arises out of award dated 2.8.2004 passed by Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, in MAC Petition No. 90-MAC/2 of 2003, titled as Smt. Jai Manti Devi and others vs. Surender Singh and another. On 20.7.2003, vehicle No. HP-16-1657 met with an accident near Kheri Maryog- Baru Sahib road, Tehsil Nahan, District Sirmaur, H.P. in which Shri Des Raj, owner of the goods and Shri Kamal Raj, driver of the vehicle died. The legal heirs of deceased Shri Des Raj instituted Claim Whether the reporters of Local Papers are allowed to see the Judgment? 2 Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) seeking compensation of a sum of Rs.20 lacs. The owner Shri Surender Singh opposed the petition by filing its written statement, inter alia, pleading that the vehicle in question was insured with the United India Insurance Company Limited (hereinafter referred to as the “Insurance Company”) and the driver, who unfortunately also died in the said accident, was having a valid driving licence. The Insurance Company also opposed the petition, inter alia, alleging that the driver of the vehicle did not possess a valid and effective driving licence, which fact was within the knowledge of Insured. Based on the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether Shri Des Raj died in the accident of truck bearing registration No. HP-16-1657 which was being driven rashly and negligently by its driver and the deceased was travelling in the truck as owner of the goods, if so its effect? OPP 2. If Issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP 3. Whether the driver of the truck was not having a valid driving licence at the time of the accident and that the vehicle was being driven in contravention of the insurance policy, if so its effect? OPR-2.” To prove its case, the claimants examined Smt. Jai Manti Devi (PW-1), Shri Som Dutt (PW-2) and Constable Ranjit Singh (PW-3). Significantly, the respondents in the claim petition did not lead any evidence except for tendering the copy of Insurance Cover note and Insurance Policy 3 (Ext.R-1 and Ext.R-3 respectively) and also photocopy of the registration certificate of the vehicle (Ext.R-2). Appreciating the material on record, the Tribunal decided Issues No.1 and 2 in favour of the claimants and held the claimants entitled to compensation of a sum of Rs.4,70,000/- alongwith interest. However, on Issue No.3 the Tribunal came to the conclusion that since no driving licence of the driver of the vehicle had been placed on record by its owner, therefore, the Insurance Company could not be held liable to pay and the owner alone was liable to pay the awarded amount of compensation. It is against this finding that the owner has filed the present appeal. No appeal has been filed either by the claimants or by the Insurance Company. During the course of hearing, learned counsel for the appellant confined his submission only to the issue of liability. No submission was made with regard to Issues No.1 and 2 as determined by the Tribunal. I have heard the learned counsel for the parties and perused the award. It is a matter of record that none of the respondents to the claim petition i.e. owner or the Insurance Company led any evidence. The owner in the written statement specifically pleaded that the vehicle was being driven by the deceased Kamal Raj, who was having a valid driving licence. This fact was disputed by the Insurance Company. It is also a matter of record that no evidence was led by the Insurance Company and except for tendering the Insurance Cover Note and the Insurance Policy no steps were taken by the Insurance Company. No notice asking the owner to 4 produce the driving licence was issued nor any material was placed to show that the driver was not having a valid driving licence at the time of the accident. Unfortunately, the possessor of the licence also expired in the very same accident in which Shri Des Raj, predecessor-in-interest of the legal heirs/claimants had expired. The onus to prove the issue whether the Insurance Company was not liable to pay the awarded compensation for the reason that the driver of the truck was not holding a valid driving licence was heavy on the Insurance Company and rightly so fixed by the Tribunal. In Narcinva V.Kamat v. Alfredo Antonio Doe Martins, AIR 1985 SC 1281, the Apex Court has held that the insured is under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. Mere failure on the part of the owner to produce the driving licence, when called upon to do so in the cross-examination would not discharge the burden and no adverse inference to the effect that the driver did not have a valid licence can be drawn. The insurance company should have got evidence to substantiate its allegation. Applying the test who would fail if no evidence is led, the Court held that it would be the insurance company In National Insurance Co. Ltd. v. Swaran Singh and others, (2004) 3 SCC 297, the Apex Court has held that once the assured proves that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within its exception. The Insurance Company, which alleges the breach must prove the same and is required to establish the said breach by cogent evidence. Failure to prove that there has been breach of conditions of policy on the part of the insured, the insurance 5 company cannot be absolved of its liability. The Insurance Company with a view to avoid the liability must not only establish the available defences raised in the proceedings but must also establish the breach on the part of the owner of the vehicle. It is not in dispute that the vehicle was insured and covered by the Insurance Cover Note and Insurance Policy (Ext.R-1 and Ext.R-3). In the present case as has been noticed earlier, no steps were taken by the Insurance Company to discharge the onus and to show that the owner of the vehicle had handed over the vehicle to an unlicenced driver, thus, absolving the Insurance Company of the liability in view of exception clause to the Insurance Policy. No evidence whatsoever was led. Therefore, in my considered view the Tribunal was not correct in coming to the conclusion that simply because the driving licence of the deceased driver had not been placed on record by the owner, the Insurance Company was not liable to pay the compensation in view of exception clause. The decision rendered by this Court in Oriental Insurance Co. Ltd. vs. Vidya Devi and others, 2006 ACJ 723, relied upon by the learned counsel for the Insurance Company is clearly distinguishable on facts. There the Court was dealing with the case where one of the owners was proceeded ex parte and the other owner neither filed any reply to the claim petition nor did it respond to the notice issued by the Insurance Company under Order 11 Rule 4, CPC. The Insurance Company in that case had taken all steps to shift the burden of onus on the owner as was required in law. 6 The decisions referred to and relied upon by the Tribunal i.e. in Kashiram Yadav and another v. Oridental Fire & Genl. Insurance Co. Ltd. and others, 1989 ACJ 1078 and Sohan Lal Passi v. P.Sesh Reddy and others, 1996 ACJ 1044 were considered by the Apex Court in Swaran Singh (2004)3 SCC 297 (supra). For the aforesaid reasons, the present appeal is allowed. The award passed by the Tribunal to the extent that the Insurance Company is not liable to pay the compensation is set aside and it is held that the Insurance Company is liable to pay the compensation to the claimants. 4th August, 2008 (Sanjay Karol), (C) Judge.