1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.90 OF 2010 National Insurance Co. Ltd., Ansabhat, Mapusa, Goa. …. Appellant V/s 1. Smt. Nazmin Khan, d/o. Ibrahim Shaikh, 27 years, housewife & her son; 2. Mast. Sultan Khan, s/o. late Imtiaz Khan, 6 years, minor, represented by his mother, Smt. Nazmin Khan, Both r/o Plot No.120, Gogol, Housing Board, Margao. 3. Shri Shaikh Nisar, s/o. Shaikh Kadar, 35 years, r/o H.No.81, Ansabhat, Mapusa, Goa. 4. Shri Shaikh Abdul Kadar, Major in age, r/o. H.No.81, Ansabhat, Mapusa, Goa. …. Respondents Mr. M.S. Joshi, Advocate for the Appellant. Mr. A.D. Bhobe, Advocate for Respondents Nos.1 & 2. Mr. Pavithran A.V., Advocate for Respondents Nos.3 & 4. CORAM : N.A. BRITTO, J. DATE : 14th DECEMBER, 2010 JUDGMENT : Heard. 2 2. This appeal is filed by the insurer–respondent no.3 in claim petition no.319/2004. The parties hereto shall be referred to in the names as they appear in the cause title of the said claim petition. 3. Respondents Nos.1,2 & 3 were driver, owner and insurer of the minibus no.GA-01-Z-5581 which was involved in the accident. The respondent no.3, the insurer, had taken a plea that there was a breach of policy as respondent no.1, the driver, did not hold a valid driving license at the time of accident. The said plea was the subject matter of issue no.4 and it has been answered against the respondents in the said claim petition. 4. The learned Presiding Officer of the MACT referring to the evidence of Head Constable/Kavlekar, who was examined as AW4 observed that it had come on record that he had asked the driver to produce his driving license which he had failed to produce and later on the said AW4 had admitted that he was not holding the driving license to drive the bus on the date of accident. According to the learned Presiding Officer, the complaint produced on record belied the defence case in as much as no offence was registered against the bus driver for violation of the Motor Vehicles Act, 1988 and the Rules (framed thereunder). 3 5. Shri Joshi, learned Counsel appearing on behalf of the appellant/insurer concedes that respondent no.3, the insurer had not led any evidence in support of the plea taken, but submits that respondent no.3 was able to obtain admission from the said Head Constable Shri Kavlekar to prove that the respondent no1, the driver had no driving license at the time of driving the said vehicle. Learned Counsel points out to copy of the first information report, particularly, column no.4 wherein reference is made to Section 3 of Motor Vehicles Act, and, therefore, learned Counsel submits that the observation that no offence was registered against the bus driver of the learned MACT is incorrect. Learned Counsel then points out to the evidence of the said Head Constable Shri Kavlekar, who initially in the cross-examination had stated that he had asked the said driver of the bus to produce his license but he failed to produce the same and later in the said cross-examination he made a statement that the respondent no.1 was not holding a driving license to drive the bus on the date of the accident. Learned Counsel therefore submits that it was not necessary for respondent no.3, the insurer, to step in the witness box, as respondent no.3 had obtained admissions from the claimant's witness the said Shri Kavlekar to show that the respondent no.1 4 had no driving license at the time of accident and thereby had discharged the onus which was on respondent no.3. 6. Shri Joshi has placed reliance on the case of Sardari & Ors. V/s. Sushil Kumar & Ors. (2008 ALL SCR 639) wherein it has been held that when a person not holding a driving license causes an accident the insurance company is not liable to pay compensation. 7. Shri A.D. Bhobe, learned Counsel appearing on behalf of respondents nos.1 & 2 in the said claim petition refers to the case of Narchinva V. Kamat & Anr. V/s. Alfredo Antonio Doe Martins & Ors. (AIR 1985 SC 1281) and submits that the burden was squarely on the party which complains of breach to prove that the breach has been committed by the other party to the contract and the test in such a situation would be who would fail if no evidence is led. Learned Counsel has also placed reliance on the case of New India Assurance Company Ltd. V/s. Smt. Shashikalabai & Ors. [2008 (2) TAC 28 (Bom.)] wherein the same principle has been reiterated and wherein it is observed that in a catena of decisions, it is now well settled, that the burden of proof that the driver did not have license lies on the insurance company. Shri 5 Bhobe submits that in the criminal case which was filed pursuant to the FIR lodged by the said Kavlekar the respondent no.1 as accused has been acquitted. Learned Counsel further submits that as per his instructions there was no charge framed against respondent no.1 under Section 181 of the Motor Vehicles Act, 1988 which is the punishing section, for not holding a valid driving license as required under Section 3 of the Motor Vehicles Act, 1988. 8. Learned Counsel Shri Pavithran has adopted the submissions of Shri A.D. Bhobe. 9. There can be no dispute that the burden to prove issue no.4 was entirely on respondent no.3 in the said claim petition and admittedly none of the respondents had led evidence in the said claim petition. The copy of the FIR, as already noted, only refers to Section 3 of the Motor Vehicles Act, but does not refer to Section 181 of the Motor vehicles Act, 1988 which is the punishing section. Moreover, column no.12 which requires the contents of the FIR to be shown does not have any positive statement that respondent no.1 had no driving license. It only refers to Sections 279,337 IPC and 3 of the Motor Vehicles Act. Therefore, I am 6 inclined to accept the submission of Shri Bhobe that no charge was framed under section 181 of the Motor Vehicles Act against respondent no.1. In any event, there is no dispute that respondent no.1 as accused has been acquitted from the said case. 10. The only evidence on which respondent no.3 now relies are the statements made by the said Head Constable Shri Kavlekar wherein firstly he stated that he had asked the driver to produce his driving license which he had failed to do and next he stated that respondent no.1 was not holding a driving license. No further details were given by him as to when he had asked the respondent no.1 to produce the license or whether the request was made in writing or whether he had given time to respondent no.1 to produce the license. It could as well be that when Shri Kavlekar had asked respondent no.1 to produce the license, he did not have it in hand to produce it. In my view, such sketchy evidence could not be relied upon to support a plea burden of which was on defendant no.3 to prove. 11. In the circumstances, the finding of the learned Presiding Officer of the MACT on issue no.4 cannot be faulted. 7 12. There is no merit in this appeal and, consequently, the same is hereby dismissed. N.A. BRITTO, J. NH/-