* THE HON’BLE MR. JUSTICE R. KANTHA RAO + C.M.A.No. 1954 of 2001 % Dated:11.03.2010 # Chinni Subba Rao and another ..... APPELLANTS AND $ Syed Kareemuddin and others .....RESPONDENTS ! Counsel for the Appellants: Mr. S.Syamasunder Rao ^ Counsel for the Respondent : Mr. B.Devanand <GIST: > HEAD NOTE: ? Cases referred HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.1954 OF 2001 Dated: 11.03.2010 BETWEEN: Chinni Subba Rao and another .. Appellant And Syed Kareemuddin and others .. Respondents HON’BLE SRI JUSTICE R. KANTHA RAO C.M.A.NO.1954 OF 2001 JUDGMENT: This appeal is filed by the claimants against the order, dated 11.04.2001 passed by the Motor Accidents Claims Tribunal-cum-II Additional District Judge, West Godavari, Eluru in O.P.No.204 of 1997. 2. Challenging the order of the learned Tribunal to the extent it exonerated the third respondent-insurance company from the liability to pay compensation, this appeal is filed. 3. There is no dispute about the fact that the appellants are the sons of the deceased Venkamma, who died in a motor vehicle accident occurred on 11.04.1997 being hit by the lorry bearing A.P. 28T 8667. The learned Tribunal held that the accident took place as a result of rash and negligent driving of the driver of the first respondent, who was driving the said vehicle and there is no challenge to the said finding. However, the learned Tribunal recorded a positive finding that the driver of the offending vehicle had no valid driving licence and the said finding is challenged in the appeal by the appellant on the ground that the same is not based on reliable evidence adduced by the third respondent- insurance company and it is wholly erroneous. 4. I have heard the learned counsel appearing for the appellants and the learned counsel appearing for the third respondent – insurance company. 5. The third respondent-insurance company did not take a specific plea in the counter that the driver of the offending vehicle had no valid driving licence at relevant point of time. Further the learned Tribunal recorded the finding basing on Ex.B.2 which is the report of the investigator appointed by the insurance company marked through RW1 it’s official. It is true that driving the vehicle without holding a valid driving licence is in violation of terms and conditions of policy of insurance which is marked as Ex.B.1. But the fact that the first respondent, who was driving the offending vehicle had in fact no valid driving licence at material time has to be proved by the insurance company strictly in accordance with law. In the absence of any satisfactory evidence adduced by the insurance company in proof of the said fact, it is not possible for the Court to come to the conclusion that the driver in fact had no valid driving licence. Ex.B.2 is nothing but a report said to be issued by the investigator appointed by the third respondent – insurance company itself. The insurance company did not examine the said investigator, who issued Ex.B.2. Ex.B.2 was marked through RW.1, who is an official of the insurance company. Therefore, Ex.B.2 is not proved by the insurance company. Further in a situation like this, it is obligatory on the part of the insurance company to summon the concerned person of RTA to establish that the driver of the offending vehicle was not possessing a valid driving licence at relevant point of time, and the liability of the insurance company cannot be said to be discharged by mere marking Ex.B.2 which was issued by the investigator. Therefore, in my considered view, absolutely, there is no reliable evidence adduced by the insurance company in proof of the fact that the driver of the offending vehicle has no valid driving licence. The learned Tribunal lost sight of the fact that the insurance company had not discharged its burden and exonerated the third respondent-insurance company from it’s liability to pay compensation to the claimants which is totally erroneous. Since the insurance company failed to discharge it’s burden, the learned Tribunal ought to have held that the insurance company is liable to indemnify the owner of the vehicle and accordingly it has to pay the compensation to the claimants. The finding recorded by the Tribunal is set aside in this appeal and the third respondent- insurance company is held liable to pay compensation to the claimants and it may recover the said amount from the owner of the vehicle. 6. In the result, the appeal is allowed. The third respondent- insurance company is held liable to pay compensation to the claimants and it may recover the said amount from the owner of the vehicle. The third respondent–insurance company is directed to deposit the compensation amount within one month from the date of receipt of a copy of this order. There shall be no order as to costs. _______________ R.KANTHA RAO,J Dated: 11.03.2010 Note : L.R. copy to be marked b/o Kvrm