1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.07.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI C.M.A.(MD)No.346 of 2011 and M.P.(MD).Nos.1 & 2 of 2011 The United India Insurance Co. Ltd., 74-A, Salai Road, Trichy -18. ... Appellant/2nd respondent Vs. Rasu (died) 1.Rajini 2.Kumarianandan 3.Muthulakshmi ... Respondents 1 to 3/Petitioners 4.The Director, Association of Rural Education and Development Service, Renganathapuram, Krishnarayapuram Taluk, Karur District. ... Respondent/1st Respondent PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 05.01.2010 passed in M.C.O.P.No.631 of 2005 on the file of the Motor Accident Claims Tribunal/District Court, Karur. For appellant : Mr.G.Prabhu Rajadurai For respondents : Mr.P.Muthuvijayapandian 1 to 3 For 4th respondent : Mr.A.John Vincent JUDGMENT The second respondent insurer is the appellant herein. The appeal is filed by the insurer against the direction for payment of compensation issued against the insurer. The respondents 1 to 3 are the claimants 2 to 4 in the claim petition originally filed by the husband, sons and daughter of one Rajammal, who is the victim of the fatal accident occurred at 11.00 a.m. on 30.05.2005 near Kumar Thottam on Renganathapuram Road due to rash and negligent driving of Tractor cum Trailer owned by the first respondent and insured with the second respondent at the time of the accident. 2.The first respondent/owner did not contest the claim petition. The claim petition was seriously contested by the second respondent/insurer on the ground that the driver has no valid driving https://hcservices.ecourts.gov.in/hcservices/ 2 licence to drive the particular type of vehicle. The insurer has also in support of his contention examined one witness and has produced Ex.R1 - copy of driving licence of Ganesan and Ex.R2 – Insurance policy. 3.Though Ex.R1 issued on 16.08.2002 was meant for light motor vehicle, the tribunal, having found that the driver was not charged by the police for any offence for violation of Section 3 of the Motor Vehicles Act and having found that the second respondent/insurer failed to summon the driver of the tractor cum trailer, has drawn an inference that the driver of the vehicle had valid driving licence to drive the tractor and trailer and negatived the objection raised by the insurer and fastened the liability to pay the compensation upon the insurer in terms of the policy condition. 4.In this appeal, the insurer has questioned such finding rendered by the tribunal on the ground that the insurer has by producing Ex.R driving licence, discharged its burden of proving non possession of valid driving licence which amounts to breach of policy condition and the burden thereafter shifts to the claimants to show that the driver was duly licenced to drive tractor cum trailer which is a heavy motor vehicle and required to be driven with distinct licence other than light motor vehicle licence. 5.Heard both sides. 6.The learned counsel for the first respondent/owner and insured, who remained ex-parte before the tribunal, has sought to contend before this Court that the insurer ought to have, in addition to producing Ex.R1 licence copy, summoned the driver and RTA official to prove the policy condition and mere production of licence copy is not sufficient enough to discharge the burden. It is further contended by the insured that the insurer in order to avoid liability ought to have shown that the insured is also aware of disqualification and has by allowing the person who is not duly licenced to drive the vehicle committed breach of policy condition. 7.This Court is not inclined to accept the contention so raised on the side of the owner of the vehicle cum insured for the following reasons: a)The vehicle involved in the accident is admittedly tractor with trailer which is a heavy motor vehicle and it cannot be disputed that the person holding light motor vehicle licence cannot be said to be duly licenced to drive heavy motor vehicle. b)The insurer has raised the defence regarding non possession of valid licence in the counter and has called upon the claimant to prove the possession of valid driving licence by the driver. c)The reading of Ex.R1 licence copy reveals that the licence issued to him is only to drive light motor vehicle and the same is valid for more than 15 years between 2002-2018 and the same is valid on the date of the accident during 2005. https://hcservices.ecourts.gov.in/hcservices/ 3 8.Though it may be true that the burden is upon the insurer to prima facie prove the breach of policy condition, in my considered view, the insurer has discharged the initial burden cast upon the same by producing Ex.R1, licence copy. The first respondent/ owner did not enter appearance and filed any counter before the tribunal and has also failed to contest the claim and is hence set exparte, whereas the owner of the vehicle/insured has duly entered appearance, in this appeal and sought to defend the finding rendered by the tribunal in this regard at the appellate stage. 9.In my considered view, the first respondent cannot be now for his failure to raise any defence in the tribunal and to contest the matter before the tribunal, permitted to raise any defence or advance any argument in this regard at the appellate stage. It may be true that any aggrieved party be permitted to file any appeal against the final order of the lower court proceedings, but such right is limited to the extent of the claim or defence, as the case may be, raised before the lower Court whose decision is sought to be appealed against, as the basic principle of law is that no party can be permitted to raise any defence without any pleading. 10.Even otherwise in the case reported in 2002 ACJ 1063 (Venkatanarayanan Vs. Balaji and others), similar situation arose for the consideration of our High Court. The similar defence is raised by the insurer that the driver has no valid licence to drive the two wheeler in question. The owner of the vehicle chose to remain absent and the insurer took steps to produce the licence copy as Ex.P1 before the court concerned and as per Ex.P1 the driver had licence to drive only light motor vehicle. It was argued on behalf of the claimant that the rider of the two wheeler could have obtained licence from some other place and not necessarily from the concerned RTO, as such the insurer by not ascertaining the fact and adducing any evidence has not properly established his defence and has not properly discharged his burden. Our High court has by following the Apex Court judgment reported in 1997 ACJ 1065 (SC)(United India Insurance Company Limited Vs. Gian Chant) held that the insurance company has done what is best in the circumstances by filing licence copy, which does not contain any endorsement for driving other type of vehicle and to require the insurance company to obtain evidence from all the transport offices throughout the state is impracticable and unreasonable. Our High Court has by observing so held that the insurance company has established the defence that the rider of the vehicle which is insured with the second respondent did not have valid licence. The observation of our High Court in paras 12, 13 & 14 by following the observation of the Supreme Court is extracted below; "12.In this context, it is pertinent to note that in the present case, the owner had chosen to remain exparte. The burden of proving that the owner was not aware of the fact that the rider had no licence is very much on the claimant or at least, the owner, if he wants to avoid his liability, should get into the box and establish that he was not aware of the said fact. In fact, the Supreme Court, in the judgment cited above dealt with this position specifically. In that case also, the owner remained exparte and did not get into the box. In such https://hcservices.ecourts.gov.in/hcservices/ 4 circumstances, the Apex Court held that an adverse inference has to be necessarily drawn against the owner. The following passage is relevant in the said context: "It was not the case of the respondent No.9, the insured, that he did not know that respondent No.1 to whom the vehicle was being handed over, was not having a valid licence. In fact, once he did not step in the witness-box to prove his case, an adverse inference had necessarily 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. That finding reached by the Tribunal as well as by the High Court must result in exonerating the insurance company of its obligation as the statutory defence became available to it." 13.Therefore, where the owner does not choose to adduce evidence that he was not aware of the fact that the person to whom the vehicle was entrusted did not have a valid licence, the burden is on the owner if he wants to avoid any liability. Otherwise, if the claimant wants to fasten liability on the insurance company, it is for him to prove the said fact. 14.Therefore, in the present case, the owner having chosen to keep himself out of the witness box and the claimant not having produced satisfactory evidence in the said context, the order of the Tribunal exonerating the insurance company is perfectly valid." 11.This court is also by applying the same view expressed by Apex Court and our High Court inclined to hold that the owner of the vehicle having failed to raise any defence and adduce any evidence to prove the same, cannot be now permitted to advance any argument as if the burden is entirely upon the insurer to prove the non possession of valid licence. The insurer has discharged his burden and the burden is shifted to the owner and the claimant and on their failure to adduce any evidence, the tribunal ought to have drawn adverse inference against the owner, but the tribunal has grossly erred in not considering Ex.R1 and erred in negativing the objection raised by the insurer. In that event, the driver of the vehicle in question who was holding only LMV vehicle licence on the date of the accident is to be held not duly licenced to drive tractor cum trailer and the same is in violation of breach of policy condition and on the failure of the insured to get into the witness box to deny any knowledge of such non possession drawn against the insured, the breach of policy condition on the part of both the driver and insured is but apparent on the face of the record. However, the insurer is in terms of policy condition liable to satisfy the award as it is the case covered under Section 149(4) of the Motor Vehicles Act, however with right available to the insurer to recover the same from the insured. As there is no dispute with regard to the quantum of the compensation, the same deserves no interference. 12.In the result, the award dated 05.01.2010 made in M.C.O.P.No.631 of 2005 is modified by directing the payment of the compensation by the second respondent/insurer to the claimants with the https://hcservices.ecourts.gov.in/hcservices/ 5 right given to the insurer to recover the same from the first respondent/owner. The award of the tribunal is confirmed in other respects. The appeal is disposed of accordingly. Consequently, connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar(CS) To The Motor Accident Claims Tribunal/ District Judge, Karur. +1cc to M/s.A.John Vincent, Advocate, SR.No.21710 +1cc to M/s.P.MuthuVijaya Pandian, Advocate, sr.No.21242 gcg GH : 10.10.2011 : 5p/4c C.M.A(MD)No.346 of 2011 01.07.2011 https://hcservices.ecourts.gov.in/hcservices/