F.A.O. No. 4368 of 2009 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4368 of 2009 Date of Decision: November 2nd, 2011 ICICI Lombard General Insurance Company Limited .... Appellant Versus Smt. Sunita Mishra and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Subhash Goyal, Advocate, for the appellant. None for the respondents. VIJENDER SINGH MALIK, J. This is insurer's appeal against the award dated 4.6.2009 passed by the Motor Accidents Claims Tribunal, Faridabad (for short, "the Tribunal"), vide which compensation in a sum of Rs.3,12,400/- has been awarded to the claimants and the responsibility to pay the same has been held to be joint and several of respondents No. 1 to 3. The grouse of the insurer is that respondent No.1 was holding a learner's licence and at the time of accident, he was not driving the vehicle in the presence of an Instructor. F.A.O. No. 4368 of 2009 2 .. The facts leading to the accident as also regarding personal particulars of the deceased are not required to be noticed here. What is required to be noticed is that the insurer, respondent no.3 before the Tribunal, had claimed in its written statement that the Toyota car bearing registration No. UP-14 L-9160 was being driven by a person, who was not holding a valid and effective driving licence and as such, there has been breach of terms and conditions of the insurance policy. I have heard Mr. Subhash Goyal, learned counsel for the appellant. None had been appearing for the respondents in the case despite the fact that on failure to serve them in this appeal by ordinary process, they had been served by way of publication. I have gone through the record carefully. Learned counsel for the appellant has drawn my attention to the provisions of section 3(1) of the Motor Vehicles Act, 1988 (for short, “the Act”) which lay down a negative mandate to the effect that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle. He has also drawn my attention to the provisions of sub section (2) of section 3 of the Act, where it is laid down that conditions subject to which a person receiving instruction in driving a motor vehicle may be exempted from the provisions of sub section (1) of section (3) shall be such as may be prescribed by the Central Government. He then drew my attention to Chapter F.A.O. No. 4368 of 2009 3 .. II, rule 3 of the Central Motor Vehicles Rules, 1989, which lay down that the provisions of sub section (1) of section 3 of the Act shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive so long as such person is the holder of an effective learner's licence issued to him in form 3 to drive the vehicle and such a person is accompanied by an instructor holding an effective driving licence to drive the vehicle. The other condition of painting letter L on the front and the rear of the vehicle is not relevant here. Learned counsel for the appellant then drew my attention to page No. 97 of the record of the Tribunal where learner's licence in the name of respondent no.1 is there. According to him, a person holding this driving licence was not competent to drive the vehicle in the absence of an instructor, holding a valid driving licence to drive the vehicle. He has submitted that learned Tribunal had ignored this aspect and has also mentioned wrongly that respondent No. 3 has not led any evidence to prove that respondent No.1 was not having an effective driving licence to drive the offending vehicle at that time. Before the court comes to the stage of consideration of the submissions made by learned counsel for the appellant, the insurer had to prove that the document available at page No. 97 of the record of the Tribunal is the driving licence of respondent No.1. F.A.O. No. 4368 of 2009 4 .. No evidence was led to prove the same. Even notice was not given to respondents No. 1 and 2 to produce the licence held by respondent no.1 at the time of the alleged accident. It is true that respondents No. 1 and 2 had been proceeded against ex-parte, yet notice could be given to them through the Tribunal to produce the licence. The onus was lying heavily on the insurance company to prove that the insured had committed breach of the terms and conditions of the insurance policy by handing over the vehicle to a person, who was not having a valid and effective driving licence to drive the vehicle at the time of accident. Wherefrom the document, available on the record of the Tribunal, came to the insurer is not evident. There is no evidence to connect the same with respondent No.1. It cannot be believed that it is a genuine document and that it is a learner's licence of respondent No.1. In these circumstances, learned Tribunal has rightly held that no evidence had been led to prove that respondent No.1 was not holding a valid and effective driving licence to drive the vehicle at the time of alleged accident. The finding of learned Tribunal on issue No. 3 is, consequently, affirmed. Finding no merit in the appeal, the same is dismissed. (VIJENDER SINGH MALIK) JUDGE November 2nd, 2011 som