IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 21/2006 United India Insurance Company Ltd. … Appellant. Versus Smt. Saroj Dwivedi and 3 others ….. Respondents. With A.O. No. 25/2006 United India Insurance Company Ltd. .. Appellant. Versus Smt. Basanti Devi and 6 others …… Respondents. Mr. Pankaj Purohit, Advocate for the appellant. Mr. Neeraj Upreti, learned counsel for the respondents/claimants None has appeared on behalf of respondent/owner of the Vehicle. UDated:31-7-2008 UHon’ble B.C. Kandpal, J. As both these appeals arise out of the same accident and similar controversy is involved, therefore they are being decided by this common judgment. 2- A.O. No. 21/2006, has been preferred against the judgment and award dated 24-10-2005, passed by Motor Accident Claims Tribunal/District Judge, Pithoragarh, in MACT Case No. 79/2003, whereby the learned Tribunal has awarded a sum of Rs. 4,39,000/- as compensation payable by United India Insurance Company in lieu of death of Ishwari Dutt in a motor accident. The Tribunal directed the Insurance Company to pay the compensation within two months, failing which interest @ 7% per annum shall be payable from the date of filing the petition till the actual date of payment. 3- A.O. No. 25/2006, has been preferred against the judgment and award dated 24-10-2005, passed by Motor Accident Claims Tribunal/District Judge, 2 Pithoragarh, in MACT Case No. 77/2003, whereby the learned Tribunal has awarded a sum of Rs. 3,67,000/- as compensation payable by United India Insurance Company in lieu of death of Nathi Ram, in a motor accident. The Tribunal directed the Insurance Company to pay the compensation within two months, failing which interest @ 7% per annum shall be payable from the date of filing the petition till the actual date of payment. 4- The relevant facts of the case are that on 20-9- 2003, at about 9 A.M. the deceased persons Ishwari Dutt and Nathi Ram were travelling in Jeep No. UA 05/960, who boarded the said jeep at Kweeti. When the jeep reached near Kakadsem bend, due to rash and negligence of the driver, it fell in Jakula river and both the persons Nathi Ram and Ishwari Dutt sustained grievous injuries and died at the spot. According to the claimants, deceased Ishwari Dutt was aged about 25 years and was doing the business of readymade and his monthly earning was about Rs. 5,000/-, whereas the deceased Nathi Ram at the time of accident was 40 years of age and he was doing the business of goldsmith and his monthly income of Rs. 3,000/-. The claimants preferred claim petitions in lieu of death of the above deceased persons. 5- The opposite party No.1, the owner of the offending jeep contested both the claim petitions and has admitted the accident by his jeep, but he has alleged that at the place of accident the motor road had sinked due to which the accident has occurred. The driver had no fault in the accident. He also alleged that the vehicle was insured with United India Insurance Company and its 3 driver had valid driving license, therefore, the liability if any, is upon the insurer of the jeep. 6- The opposite party No.2, United India Insurance Company also contested the petitions by filing its written statement and alleged that the vehicle was being plied against the terms of insurance policy and it has no valid documents hence it has no liability to pay any compensation. 7- The learned Tribunal, on the basis of pleadings of parties, framed issues in both the claim petitions. Thereafter parties led evidence in support of their case. The learned Tribunal on hearing learned counsel for the parties and perusing the material on record, awarded the compensation against the Insurance Company. 8- Feeling aggrieved, the United India Insurance Company has preferred these appeals before this Court. 9- I have heard learned counsel for the appellant/insurance company and learned counsel for the respondents/claimants and perused the record. 10- The main ground of challenge raised in these appeals is that the driver of the offending jeep was not having a valid driving license. The learned Tribunal has dealt this point in the impugned judgment and awards by framing issue. The owner of the offending jeep has made averment in his written statement that the offending jeep was being plied by a person who was possessing a valid driving license. Against this pleading, the insurer of the vehicle has adduced D.W.2, C.S. Koranga, who is the witness of the insurer and who prepared the survey 4 report. This witness could not dare to state that the driver was not having a valid driving license. He has simply stated that the license of the driver was not having hill endorsement. On the other hand the learned Tribunal on the basis of record found that the driver was having valid driving license to drive light motor vehicle, motor vehicles and heavy goods for the period 24.4.2003 to 24.4.2006. It has nowhere been proved that the driver was disqualified to ply the vehicles. Moreover, the Apex Court has held in paragraph 110(iii) of the judgment in the case of National Insurance Co. Ltd. Vs. Swaran Singh, reported in [(2004) 3 Supreme Court Cases, 297], as under:- “The breach of policy condition, e.g., disqualification of driver or invalid driving license of the driver, as contained in sub-section (2)(a) (ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.” 11- Taking into consideration the view of the Hon’ble Apex Court, I find that the appellant has failed to discharge its burden. Therefore, after having considered the facts and circumstances of the case and the material available on record, I do not find any infirmity in the 5 finding recorded by the learned Tribunal holding that the driver was having valid driving license. 12- Here it may also be noted that the point in controversy was considered by the learned Single Judge of this Court in A.O. No.23/2006, United India Insurance Company Ltd. Vs. Smt. Parvati and others, arising out of the same accident, and the Court vide judgment 3-4- 2006 has decided the point against the insurance company upholding the finding of the Tribunal on the point of driving license. 13- For the reasons recorded above, I do not find any substance in the present appeals and the same are liable to be dismissed. 14- Accordingly, both the appeals are dismissed. The impugned judgment and awards passed by the learned Tribunal dated 24-10-2005 in MACT No. 77/2003 and 79/2003 are hereby confirmed. 15- The statutory amount of compensation deposited by the appellant at the time of admission of the appeals, be remitted to the tribunal concerned. 16- Let a copy of this judgment be placed in the file of A.O. No.25/2006. (B.C. Kandpal, J.) ISB