kbp 1 fa44-99.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.44 OF 1999 The New India Assurance Co. Ltd. ..Appellant Vs. Chandrakant Genu Ghuge and another ..Respondents ......... Mr.M.G.Barve, for appellant. Mr.Sanjay Shinde i/b.Mr.M.M.Sathaye, for respondent no.1. None for the second respondent. ......... CORAM : A.S.OKA, J.. DATE : 14 th December, 2009. JUDGMENT : 1] Heard learned counsel for the appellant and learned counsel for the first respondent. The challenge in this appeal is to the judgment and award dated 5 th September, 1998 passed by the learned Member of the Motor Accident Claims Tribunal on a claim petition filed by the second respondent. 2] According to the case of second respondent, on 22 nd January, 1989 he visited at Nashik on his motorcycle for purchasing certain medicines. He was returning around 4:00 p.m. to his village Umbarthan. According to him, he was driving the motorcycle carefully. When he was passing from the village Mhasrul, one motorcycle bearing No.MFQ-511 was coming from the opposite direction at kbp 2 fa44-99.sxw an excessive speed. The allegation is that the first respondent was driving the motorcycle in a rash and negligent manner. The first respondent gave a dash to the motorcycle of second respondent. As a result, the second respondent sustained injuries and damage was caused to his motorcycle. Therefore, a claim petition was filed by the second respondent. 3] The first respondent did not contest the claim petition and the appellant contested the claim petition. One of the defences raised was that the first respondent was driving the motorcycle without having a driving licence. The Tribunal recorded a finding that the appellant has not adduced any evidence to show that the first respondent was having a learner’s licence during the relevant period when the accident occurred. A xerox copy of the learner’s licence placed on record showed that it was issued on 16 th August, 1989 i.e.after the accident. The Tribunal held that it cannot be held that on the date of the accident he was not holding any licence. Therefore, the learned Member of the Tribunal held that the first respondent has not committed any breach of the conditions of the policy. The Tribunal awarded the compensation with interest. 4] The submission of the learned counsel for the appellant that is the insurer discharged the burden by examining an Officer of the Road Transport Office as witness and by producing a xerox copy of learner’s licence dated 16 th August, 1989 taken by the first respondent. He submitted that in the present case the insured was himself the driver. He has submitted that, therefore, the appellant kbp 3 fa44-99.sxw discharged the burden by showing that on the date of accident the first respondent was not having a driving licence. He submitted that the appellant had proved the breach of terms and conditions of the policy. 5] Learned counsel for the first respondent supported the impugned award by relying upon a decision of the Karnataka High Court in the case of National Insurance Co. Ltd. Vs. T.Sharanappa and another [1998(I) Civil L.J.529] and a decision of the Punjab and Haryana High Court in the case of Oriental Insurance Company Ltd. Vs. Paro and others [1995 A.C.J. 558]. He submitted that the appellant Insurer has not discharged the burden of establishing that the first respondent was driving the vehicle without possessing any valid licence on the date of accident, and therefore, the Tribunal has rightly held the breach has not been established. 6] Learned counsel for the appellant relied upon a decision of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Mandar Madhav Tambe and others [1996 ACJ 253]. He submitted that the fact that the first respondent obtained learner’s licence after the accident shows that on the date of accident he was not he was not possessing the permanent licence. 7] I have carefully considered the submissions. In the written statement, the appellant raised a specific contention that the first respondent was not possessing a driving licence on the date of accident. The appellant examined one Dilip Jadhav who was attached the license section of the Road Transport kbp 4 fa44-99.sxw Office, Nashik. He produced a xerox copy of learner’s licence issued to the first respondent which is marked as Exhibit 73 which shows that the licence was issued in favour of the first respondent after accident i.e. on 16 th August, 1989. The learned Member of the Tribunal has relied upon the admission of the said witness that the record of the previous licenses is not available in the said office. The learned Member has come to the conclusion that what is proved by the appellant is that on 16 th March, 1999 the first respondent was possessing a learner’s license and that it is not established by the appellant that on 22 nd February, 1989 the first respondent was possessing any license. 8] It is true that mere absence of license by itself is not sufficient for the Tribunal to come to the conclusion that there is a breach of terms and conditions of the policy by the insured. In the case of the National Insurance Company Ltd. Vs.Swaransing [2004 (3) SCC 297], the Apex Court held that in such a case, to avoid its liability, the insurer has to prove that the insured was guilty of negligence and failed to exercise a reasonable care in fulfilling the conditions of the policy regarding use of the vehicle by a licensed driver or one who was not disqualified for driving at the relevant time. In the present case, the insured himself is the driver of the vehicle. He was made a party to the claim petition and he has not chosen to contest the claim petition. The appellant examined a Clerk in the concerned section of the Road Transport Office who produced a xerox copy of the learner’s license of the first respondent which was issued after the kbp 5 fa44-99.sxw accident. Considering the facts, this is a case where the appellant discharged the burden of proving that the insured was the guilty of negligence in driving the vehicle without possessing a valid licence. This finding will have to be recorded in the context of fact that the first respondent has not chosen to appear and adduce any evidence. In view of the aforesaid decision of the Apex Court, reliance placed by the Tribunal on the decision of the Punjab & Haryana High Court as well as the Karnataka High Court will not help the first respondent. Thus, the appellant had discharged the burden of establishing breach of terms and conditions of the policy on the part of the first respondent insured. There is no evidence adduced by the first respondent. In the circumstances, the appellant was not liable to honour the award passed in favour of the first respondent. To that extent the Appeal must succeed. 9] Hence, I pass the following order:- (a) The claim petition filed by the second respondent is hereby dismissed as against the appellant. However, the impugned award passed as against the first respondent stands confirmed. (b) Appeal is allowed to the aforesaid extent with no orders as to the costs. ( A.S.OKA, J. )