THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.2264 of 2009 Dated:-______ April, 2011 Between:- M/s.Bajaj Alliance General Insurance Co. Ltd., …Appellant AND Smt.U.Manjula and others …Respondents THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.2264 of 2009 JUDGMENT:- M/s.Bajaj Allianz General Insurance Company Limited, represented by its Manager, aggrieved by the award dated 07.05.2008 passed in M.V.O.P.No.1610 of 2008 by the Additional Metropolitan Sessions Judge for the trial of JHCBBC – cum – Addl. Family Court – cum – XXIII Additional Chief Judge (Motor Accidents Claims Tribunal), Hyderabad (for short, ‘the Tribunal’), filed this appeal. 2. The petitioner herein is the second respondent, respondents 1 to 3 herein are the claimants and the fourth respondent herein is the first respondent before the Tribunal. For the sake of convenience, the parties will be referred to as they were arrayed before the Tribunal. 3. The first claimant is the wife, second claimant is the father and the third claimant is the mother of deceased Narsimulu, who died in a motor accident. 4. The brief facts of the case are as follows:- On 11.04.2006, deceased Narsimulu and his friend – Lingam were traveling on a Hero Honda motorcycle from Shadnagar to Tangellapally village. Lingam was driving the motorcycle and the deceased was a pillion rider. When they reached near Mogiligadda Village, in front of Gampalacheruvu, an auto trolley bearing registration No.AP 22 V 4907, being driven by its driver – cum – owner – P. Ashok Reddy in a rash and negligent manner at a high speed, dashed the motorcycle as a result of which, Lingam died on the spot and the deceased sustained grievious injuries and while the deceased was being shifted to the Hospital, he also succumbed to the injuries. The police Shadnagar registered a case in Crime No.193 of 2006 under Sections 304-A and 337 IPC against the driver of the auto trolley. The deceased was aged about 20 years at the time of accident and was working as labourer and was earning Rs.3,000/- per month. Alleging that the accident occurred due to rash and negligent driving of the driver of the auto trolley and the claimants have lost their breadwinner, the claimants filed MVOP under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) before the Tribunal, claiming compensation of Rs.4,00,000/-. 5. The first respondent – cum – driver and owner of the auto trolley – P. Ashok Reddy remained ex parte. The second respondent – Insurance Company contested the matter and denied the material averments made by the claimants. It is denied that the driver of the auto trolley was rash and negligent in driving the auto and caused the accident. It is further averred that the insured had not furnished the particulars of the policy and that the driver of the auto trolley was not having valid driving licence on the date of accident. It is further contended that the police and the insured have not furnished the particulars to the insured as required under Section 168 of the Act and that it is for the claimants to prove their case. 6. Basing on the above pleadings, the Tribunal formulated the following issues for consideration:- 1. Whether the accident in question took place on 11.04.2006 at about 20:00 hours due to the rash and negligent driving of the driver of the auto trolley bearing No.AP 22 V 4907? 2. Whether the petitioners (claimants) are entitled to compensation. If so, to what amount and from whom? 3. To what relief? 7. On behalf of the claimants, the first claimant herself was examined as P.W.1 and one P.Goverdhan Goud was examined as P.W.2 and Exs.A.1 to A.5 were marked. On behalf of the respondents, R.W.1 – Ravi Kiran Chitta was examined and Ex.B.1 – Insurance Policy was marked. 8. The Tribunal, on appreciation of oral and documentary evidence available on record, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the auto trolley and that on the question of quantum of compensation, the Tribunal held that the claimants are entitled to Rs.4,06,500/- towards compensation. However, on issue of fastening liability on the second respondent – Insurance Company, the Tribunal had relied on the evidence of R.W.1 and came to the conclusion that the driver of the auto trolley was not possessing valid driving licence at the time of the accident and that he is the owner cum driver of the auto trolley and that Ex.B.1 – Insurance Policy contains a condition that the driver of the vehicle must hold valid and effective driving licence to drive the vehicle at the time of accident and that the insured has violated the terms and conditions of the policy and, therefore, the Insurance Company is not liable to indemnify the Insured. Though the Tribunal held that the Insurance Company is not liable to pay the compensation to the claimants, but however, the Tribunal directed the Insurance Company to first pay the amount of compensation to the claimants and to recover the same from the driver – cum – owner of the auto trolley – cum – insured. Aggrieved by the same, the Insurance Company preferred this appeal. 9. Sri K.S.N.Murthy, learned counsel for the appellant – Insurance Company submitted that the insured is the owner – cum – driver of the auto trolley and that he, being the owner of the auto trolley, ought to have intimated the Insurance Company about the accident soon after the occurrence and that he has not furnished particulars such as the date and time of accident, his policy number, number of persons injured or killed in the accident etc., and that the Insurance Company has taken steps to summon the insured and in spite of issuing bailable warrant, the insured did not appear before the Tribunal. His main contention is that the directions given in the case between National Insurance Co.Ltd., Vs. Swaran Singh and others[1] that once the insurer has established that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident, the insurer is entitled to avoid its liability, are not applicable to the facts of the case on hand. In support of his contentions, learned counsel has relied upon the judgment in the case between New India Assurance Co., Ltd., Tirupati, Chittoor District Vs. G. Sampoorna and others[2]. 10. Per contra, Smt. A. Chaya Devi, learned counsel for the respondents/claimants submitted that the burden lies on the Insurance Company to prove that the driver of the auto trolley was not holding valid and effective driving licence at the time of accident and that even if it is proved that the driver of the auto trolley was not holding a valid and effective driving licence, it is not a ground of defence available to the Insurance Company to avoid its liability. It is further submitted that the Insurance Company must show that the driver of the auto trolley was disqualified from holding the driving licence. In support of her contentions, she has relied on the judgments in the case between Oriental Insurance Co. Ltd., Vs. Paulose[3] and Smt. D. Krishnaveni and others Vs. Mohd. Sikandar and another[4]. 11. In view of the above rival submissions, the only point that arises for consideration in this appeal is whether the impugned order is sustainable and whether the Insurance Company has discharged its liability and whether even if the Insurance Company proved that the insured has violated the conditions of the policy, whether it has to pay compensation to the claimants and then recover? 12. It is settled law that the burden lies on the Insurance Company to prove that the Insurance Company has violated the terms and conditions of the insurance policy and that it can avoid its strict liability on any one of the grounds available to it under Section 149(2) of the Act. It has to be seen that the insurer and the insured are the parties to the insurance policy and thus, the terms and conditions of the policy as to whether the insured has violated the terms and conditions of the insurance policy or not, are within the knowledge of the insured and the insurer and the claimants, being the third parties, cannot prove whether the insured has complied with or violated the terms and conditions of the policy. Since the deceased is a third party, the Insurance Company has to plead and prove that it can avoid its statutory liability. It is also settled law that even if the respondents have not filed a separate appeal, they can agitate any findings of lower trial which went against them in the appeal filed against them. Thus, the correctness or otherwise of the findings of the Tribunal that the Insurance Company had discharged its burden and proved that the insured has violated the terms and conditions of the policy can be examined in this appeal. 13. Section 101 of the Indian Evidence Act, 1872, reads as follows:- “101. Burden of proof:- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 14. Section 106 of the Indian Evidence Act, 1872, reads as follows:- 106. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 15. Of course, the Insurance Company has filed a copy of the Insurance Policy as Ex.B.1. It is also not in dispute that as per the recitals of the copy of the policy, the insured must engage a driver who is holding a valid driving licence to drive the vehicle. In this case, the insured himself was driving the vehicle and, therefore, he must have valid driving licence on the date of accident. 16. Ex.A.5 is the certified copy of the charge sheet. As seen from the contents of Ex.A.5, there is no allegation that the driver of the auto trolley was not having valid driving licence on the date of accident. The charge- sheet has been filed for the alleged offences under Section 304-A and 337 IPC. Ex.A.4 – the report of the Motor Vehicle Inspector reveals that the driving licence of the driver of the auto trolley was not produced before him. Admittedly, the Motor Vehicle Inspector was not examined. Of course, the report of the Motor Vehicle Inspector has been filed by the claimants themselves. Merely because the driver or the police did not furnish the driving licence to the Motor Vehicle Inspector, it cannot be said that the driver of the auto trolley was not holding valid driving licence as on the date of the accident. Admittedly, the Insurance Company has not examined any officials from the office of Road Transport Authority of the concerned area and no documents have been summoned from such office. This, prima facie, gives an impression that the police investigation did not disclose that the driver of the auto trolley was not having valid driving licence on the date of accident. Admittedly, the Insurance Company has not appointed any investigator to enquire into the matter and to submit his report. 17. The Insurance Company solely relies on the inaction of the insured in not producing the documents. It is true that it was obligatory on the part of the driver – cum – owner of the auto trolley to give the information and particulars in writing to the insurer such as number and expiry date of the insurance policy, date, time and place of accident, particulars of the persons injured or killed in the accident, name of the driver and particulars of his driving licence etc., Of course, it is also true that the concerned police ought to have submitted a report to the Tribunal having jurisdiction and a copy thereof to the concerned insurer under Section 158(6) of the Act and thus, it is apparent that the concerned police have not done their duty. Similarly, the insured has not furnished the particulars, as required under the provisions of the Act. By that, can it be said that the burden will be shifted to the claimants? Certainly not. It was obligatory on the part of the Insurance Company either to summon the insured or to summon the records from the concerned Road Transport Authority office or concerned officials from the Road Transport Authority Office to prove that the driver of the auto trolley was not having valid driving licence on the date of accident. 18. The award of the Tribunal shows that the Insurance Company filed an application to summon the insured and the insured did not respond to such summons and he refused to receive the same. Thereafter, the Court has issued bailable warrant to him as he refused to receive those summons also. But, admittedly, the Insurance Company failed to pay the process fee to see that the bailable warrant is executed against the insurer and accordingly, the evidence of the respondent side was closed. The Insurance Company ought to have paid the process fee to see that the bailable warrant against the insured is served upon him. 19. Be that as it may, it is clear to my mind that it is the dispute between the insured and the insurer and the claimants, being a third party, cannot be made victims merely because one of the parties to the policy has not responded to the other party. 20. Learned counsel for the Insurance Company has relied upon G.Sampoorna’s case (2 supra). The facts of that case are that the deceased was driving a tractor and trolley, which met with the accident. It was alleged that the driver of the vehicle had no valid driving licence on the date of the accident and it was not renewed. The Insurance Company specifically pleaded that the driver of the vehicle was not holding valid driving licence on the date of the accident. To substantiate that plea, the Insurance Company examined R.W.1, an employee of Regional Transport Office, Tirupati and R.W.2, an employee of the Insurance Company, who had categorically deposed with reference to the record of the Regional Transport Office that the driver of the tractor was not holding valid driving licence on the date of accident. Thus, there was sufficient evidence in that case to prove that the driving licence of the driver of the offending vehicle was not subsequently renewed. Thus, the facts of that case are entirely different and not applicable to the facts of the case on hand. In the instant case, except proving the inaction on the part of the insured, there is no positive evidence to show that the driver of the auto trolley was not having valid driving licence. Moreover, the charge-sheet filed by the police does not show that the driver of the auto trolley was not having valid and effective driving licence on the date of accident. 21. Learned counsel for the respondents/claimants had relied upon Paulose’s case (3 supra), wherein, it was held as follows:- “The Act embodies beneficent provisions. Such provisions have to be liberally construed. Literal construction can defeat the object and the purpose.” 22. Learned counsel for the respondents/claimants has also relied upon Smt. D. Krishnaveni’s case (4 supra), wherein, it was held as follows:- “It is incumbent on the part of the Insurance Company to adduce required evidence in proof of fact that driver had no valid driving licence – Insurance Company did not even take steps either be examine owner of vehicle or its driver and also it has no further establish that owner of vehicle either willfully allowed driver who was not duly licenced to drive such vehicle or that he failed to exercise reasonable care, otherwise Insurance Company cannot disown its liability on ground of breach of terms of policy.” 23. Moreover, the Apex Court, in Swaran Singh’s case (1 supra), had laid down the following conditions:- (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2) (a)(ii) of the said Act. (iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence 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 licence 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. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub- section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” [emphasis supplied) 24. To sum up the instant case, since the Insurance Company did not summon any officials from the Regional Transport Authority office or any records from that office and has failed to pay the process fee to execute the bailable warrant issued against the insured, I am of the view that the Insurance Company has not fulfilled its obligation and, thus failed to discharge its burden. Even if it is held that the Insurance Company has violated the terms and conditions of the policy, as per the guidelines of the above cited decision of the Apex Court in Swaran Singh’s case (1 supra), which is still holding field, the Insurance Company has to pay the compensation to the claimants. However, it is made clear that this order will not come in the way of the Insurance Company in initiating separate proceedings against the insured for recovery of amount by proving that the Insured has violated the terms and conditions of the policy, if so advised. 25. In view of the above discussion and for the foregoing reasons, I hold that the appeal is devoid of merits and is liable to be dismissed. 26. In the result, the M.A.C.M.A. is dismissed. However, in the circumstances, no costs. _______________________________ JUSTICE B.CHANDRA KUMAR 19th April, 2011 Bvv [1] 2004 ACJ 1 [2] 2010 (4) ALD 586 [3] 2004 ACJ 457 [4] L.C. ACR 2010 (7) A.P. 1