IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.86 of 2002 DIVISIONAL MANAGER, NATIONAL INSURANCE COM. LTD. & ANR. Versus SMT.USHA DEVI & ORS ----------- 15. 18.05.2010. (1) Heard the learned counsels for the parties. (2) The National Insurance Company has filed this Appeal against the judgment dated 10.08.2001 and the award signed on 15.09.2001 by Sri Mahendra Nrayan Singh, 3rd Addl. District Judge- cum-Claims Tribunal, Bhagalpur in Claim Case No.101 of 1997 whereby the learned Tribunal, i.e., the appellant was directed to pay compensation of Rs.2,96,046/-. (3) According to the claimants while the deceased Umesh Munni aged about 45 years fixing gutkha in truck being registration No. A.S.-01-1175 in which he was Khalasi because of rash and negligent pushing by the truck No.B.R.K.-5245 died. The appellant is the Insurance Company of truck No.B.R.K.-5245 whereas United India Insurance Company is the insurer truck No.A.S.01-1175. According to the claimants, the deceased was earning Rs.2,000/- per month and was aged about 45 years. (4) The claimants added the Insurance Company of both the trucks and the driver and the owners. The appellants filed written statement contending that it is a composite negligence and, therefore, both the Insurance Company are liable to pay. It was also alleged that the deceased was not earning Rs.2000/- per month. It was also alleged that the driver of the truck No.B.R.K.5245 had no valid license. (5) After considering the evidences and materials on 2 record, the learned Tribunal passed the impugned judgment and award. (6) The learned counsel for the appellant submitted that the learned Court below has wrongly saddled the whole compensation on the appellant because the respondents company who is insurer of the other vehicle is also liable to pay. The learned counsel further submitted that the learned Tribunal should have considered the fact that the driver had no valid driving license and also the learned Tribunal should not have assessed the compensation considering the income of the deceased to be Rs.2,000/- per month. On the other month, the learned counsel for the respondents submitted that in case of composite negligence, the claimants are at liberty to claim compensation from any of the Insurance Company and moreover in the present case after trial, the learned Tribunal has found that the truck being No.B.R.K-5245 was at fault and, therefore, there is no question of composite negligence arises. (7) From perusal of the impugned judgment and award, it appears that after considering the evidences and materials on record, the learned Tribunal found that the driver of B.R.K.5245 was at fault and, therefore, the Insurance Company of that truck is only liable to pay the compensation. After considering the oral evidences, the learned Tribunal also found the income of the deceased at Rs.2,000/- per month and age of the deceased was 45 years. (8) There is no contrary evidence adduced by the appellant-Insurance Company. In a decision reported in 2006 (4) 3 P.L.J.R. 137, the Divisional Manager, New India Assurance Company Ltd. Vs. Most. Sabitri Devi, this Court at paragraph 23 and 24 has held as follows : “23. As observed above in the foregoing paragraphs, the plea which the appellant Insurance Company advanced with the help of Sub-Section (2) of Section 149 of the Act is that the driver of the offending private passenger bus was, though holding a licence, but not a valid one, as it was fake. On the assessment of the evidence, it is noticed that this ground probably is raised for the sake of raising, as no attempt has been made to prove it. It is, absolutely, necessary, to get absolved from the payment of liability to make demand of amount of compensation or reimbursement to the victim of the road accident on account of liability of the insured owner of the vehicle which has the dominant purpose to pay the third party claims under the Act. 24. Let it be also mentioned that according to the settled proposition of law, it is also incumbent upon the Insurance Company to prove the breach of the policy condition as it is raised in this case, to the satisfaction of the Tribunal for absolving of its liability. The breach of the policy condition like disqualification of the driver or invalid driving licence of the driver or plea of fake or invalid driving licence or disqualification of the driver for driving the vehicle on the relevant time are not, in themselves, defences available to the Insurance Company against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling all the conditions of the policy of the Insurance Company regarding use of vehicles by a duly licensed driver or one who was disqualified to drive at the relevant time. Insurance Companies with a view to avoid their liability must not only establish the defence raised but must also establish breach on the part of the owner of the vehicle by proving it in accordance with law and it has to be shown to the satisfaction of the Tribunal concerned that even the insurer was in know of the disqualification of the driver which is raised in the instant case, to avoid the liability. This proposition is amply explicit and succicinctly explored by the Hon’ble Apex Court in a decision in the case of National Insurance Co. Ltd. Vs. Swarn Singh & Ors. (2004)3 SCC 297. In this three-Judge Bench decision very relevant and material observations are made in paragraphs 91, 92, 98, 99, 107 and 110 of the report. From the proposition propounded in the National Insurance Co. Ltd. (supra), the Insurance Company is unable to make any profit out of the contentions raised in these appeals.” 4 (9) In view of the above facts, here also only a statement is made in the written statement by the appellant. It is well settled that the pleading is not proof of the fact. For the purpose of establishing the fact, the party has to adduce evidence which is lacking in the present case. (10) In view of the above discussion, no illegality is found in the impugned judgment and award. (11) In the result, I find no merit in this Appeal and accordingly this Misc. Appeal is dismissed. (12) The statutory amount deposited by the appellant be transmitted to the Court below so that it may be paid to the claimants. Sanjeev/- (Mungeshwar Sahoo, J.)