^ HI6H COURT OF CHHATTIS^ARH AT BILASPUR M.A. No. 736 of 2004 Sanjay Raj Yual t' Vcrsus \;.^ Ashok (Cinnar & anothcr POST FOft JUD6MENT ON 17:4.2007 Sd/- DfflRENDRA MISHRA Judge HI^H COURT OF CHHATriSSARH AT BILASPUR M. A. N0. 736 OF 2004 APPELLANT Owner of thc vehicle/ hton-appHcantNo.l Vs RESPONDENTS ^-4" Sanjay Raj Yual, son of Emanual Yual, aged obout 37 years, R/o B-299, MCH Colony, &evra Project, S.E.C.L Distrid- Korba (C.6.) 1. Ashok Kumar, s/o Late Kcrurahar Mistri, a9©dabout 25 years, r/o at {ytesent MD 66 Dipika Cobny, (S.E.C.L) Oipika, Tah. Katghora, bistt. Korba(C.<&.) CLAIMANT 2. The United Insurance Company Limited, Throu9h Branch Manager, Branch Bilaspur (CG). NON-APPLICANT N0.2 i Present: Mr. M.K. Bhaudri, Advocate for the appellant. Mr. Ratnesh Agarwal, Advocate for respondent No.i Mr. Dashrath 6upta, Advocate for respondent .2. JUD^MENT (beliwrod on/r/04/2007) Dhirondra AUshra, J 1) This is an appeal under Section 173 of the Motor Vehicles Act-, 1988 (hereinafter referred to as the Ad-') preferred bythe owner ofjeep bearing registration number MP26-E-5752 against the award dated 15th May, 2004 passed in Claim Case No.80/2001 by the Additional AAotor Accident Claims Tribunal, Korba (C.&.) whereby iearned CJQJms Tribunal hois awarded a sum of Rs.1,50,000/- to the claimant/ respondent No.l herein and absolved respondent No.2-Insurance Company from the liability of payment of comp^isation to the claimant on the 9round that driver of vehicle did not have valid driving t.- ,-^.. iicense at the time of acddent and as such there was a breach of (nsurance policy condition. 2) Undisputed facts are that applicant Ashok Kumar filed an application under Sect-ion 166 of the Act stating therein that he is driver by profession and non-applicant No.l is his employer, who wces payinci him monthly salary of Ks.2,500/-. On the date of incident i.e. 10.3.1999 d- about l.(X) p.m. Trax Jeep driven by the applicant met with an accident near village Chotiya as a result of which he Stistained injuries over his head A le9S/he was admitted in the hospital and due to injuries sustained by him, he has become permanentfy disabled. 3) Non-applicant No.l/appellant herein denied the averments made in the claim application and also submitt'ed that the vehicle was insured by non-applicant No.Z-Insurance Company and therefore, if any compensotion is awarded in favour ofthe claimant, then the insurance company is liable for its payment. 4) Non-applicant No.2 admitted that the vehicle in question was insured by them for a period of one year commencing from 20.3.1998. However, it was contended that the vehicle was being driven as per directions of the owner, driver did not hove valid driving license, the incident took place because of neQiiQence of the applicant himself and therefore, no compensation can be awarded to the applicant. 5) On the basis of the pleadings of the respective part>ies, issues were framed by the claims tribunal and claim was awarded with the finding that non-applicant No.l was the owner of vehicie involved in the incident, it was insured with non-applicant No.2, accident occurred due to failure of steering, the appljcant-driver wos not aware of this mechanical failure and the appliccint hjnisejf was respnsible for the accident and on the basis of medical report- it has been held thot the applicant hos sustained permanent disability and compensation has been assessed at Rs.1,50,000/- including expenses towards treatment of Rs.56,793/-. -v-4 / It has been furt-her held that the applicant has not filed driving license though he has claimed that he is having driving license and he has also not assigned any reason for not fJling the driving license and with this finding it has been held that there is a breach of condition of insurance policy as the vehicle was being driven by a person without having any valid driving license cri- the time of accident and therefore, insurance company has been dbsolved from the liability of paying compensation to the claimant and the award has been passed against the non-applicant No.l/owner of vehicle alone. 6) Learned counsei for the appellant has contended that finding ofthe daims tribunal is contrary to the material available on record and as such perverse. He submits that driving license of respondent No.l- dnver was produced and proved bythe appellant as document of€x.P- 161 and the same is available on record, whereas, the tribunal has arrived at a finding thaf the driver dld not have valid drivin9 license overboking the document of Ex.P-161 available on record. It is further contended thot the onus of provmg that the driver did not have driving license at the time of accident lies upon the insurance company, but no evidence has been led by the insurance company to establish that the driving Jicense produced by the claimant was not a valid driving license, even then the tribunal has absolved the insvrance company on the 9round of breach of insurance policy condition with an erroneous finding that the driver did not have the driving license. 7) On the other hand, learned counsel for respondent No.Z-Insurwce Company supports the award of the tribunal below. 8) I have heard learned counsel for the respective parties and perused the material available on record. 9) The only issue involved in this appeal is whether claims tribunal was justified in saddling the appellant-owner of vehicle involved in the accident with the liability of payment of compensotion absolving respondent No.2-insurance company from poyment of compensation on k- !:. ' the ground thort- the drivw did not have valid driving ticense at the time of accictent and as such owner has committ'ed a breach of policy condition. 10) From perusal of the document Ex.P-161, which is avaiiable on record and the same has been proved by the applicant himself, appears that Licensing Authority, R.T.O, Bilaspur has issued driving license ^te, A/621/BSP/90 on 16.10.1990 to the claimant Ashok Kumar for driving light motor vehicle and license is valid from 16.10.1990 to 15.10.2010 and there is no evidence available on record to show that the insurance company, except making averments and reply that the drivw was not having valid driving license ot the time of accident, has odctuced any evidence to estabtish thot drivin9 license produced by the appliccuit is fake w forgecl. It is settled law thot onus of proving breach of insurance policy condition that driver did not have valid driving license lies upon the insurance company. The insurance company has not even examined any witness on their behalf. Thus, the finding of the tribunal that the driver of vehicle at the time of acctdent did not have valid driving license and as such there is a breach of Insurance policy condition, is the finding contrary to the material available on record and the same cannot be sustained. 11) In the result, the appeal preferred by the appellant/owner of the vehicle is allowed, the finding of the claims tribunal absolving respondent No-2-Insurance CompQny from the lid)ility of poyment of compensation to the claimant is hereby set aside and it is held thot respondent No.2-Insurance Company is liable for payment of Rs.1/50,000/- to the claimant by way of compensation with the other reliefs, as awarded by the clainis tribunai in Para 23 of the aword. No order as to costs. — Sd/- -, DfflRENDRA MISHRA Judge Roshan/-