NATIONAL INSURANCE COMPANY TIRUCHIRAPALLI Vs. SUGANTHA KUNTHALAMBAL

JUDGEMENT

(1.) THE above appeal has been filed by the National Insurance Co., Tiruchirapalli, against the award of the Motor Accidents Claims Tribunal, Tiruchirapalli, awarding to the respondent-claimants a sum of Rs. 30,000 as compensation for the accident that took place on 4th March, 19/4, at about 3.30 P.M. near Tiruchirapalli junction. Cross-objections have been filed by the respondents claimants claiming an enhanced compensation.

(2.) ON 4th March, 1974 at about 3.30 p. m. one T. S. Krishnamurthi who was working as an accountant in Coaching section, Southern Railway at Tiruchirapalli, while crossing the road was hit by an auto-rickshaw bearing registration No. M/TNY 1878 belonging to one Joseph and as the result of the impact, the said T. S. Krishnamurthi fell down, sustained injuries and died at the spot. ON the ground that the accident had occurred due to the rash and negligent driving of the auto-rickshaw by its driver, the legal representatives of the said Krishnamurthi filed a claim before the Motor Accidents Claims Tribunal, Tiruchirapalli, claiming a sum of Rs. 1,00,000 The said claim was opposed both by the owner of the auto-rickshaw as well as the Insurance Company with which the auto-rickshaw had been insured. Their common case was that the accident did not occur as a result of the rash and negligent driving of the auto-rickshaw by its driver and therefore, they are not liable to pay any compensation. So far as the Insurance Company is concerned, it took another defence to avoid the liability of paying compensation. It took the plea that the driver of the auto-rickshaw did not have a valid licence to drive that vehicle and therefore, under the terms of the policy it had issued, the Insurance Company cannot be held liable. The following three points arose for consideration before the Tribunal- 1. Whether the accident occurred due to the rash and negligent driving of the auto-rickshaw by its driver " 2. Whether the driver of the auto-rickshaw bad valid licence to drive the said vehicle " and

(3.) THERE cannot be any dispute that if the driver of the auto-rickshaw was not duly licensed to drive the vehicle, the appellant Insurance Company can avoid its liability arising out of the policy, in view of the following clause occurring in the policy "Provided that the person driving holds a licence to drive the motor vehicle or has held, and is not disqualified for holding or obtaining such a licence". Such provision for exclusion of liability is also contained in section 96 (2)(a)(ii) of the Motor Vehicles Act, which provides for a condition excluding liability in case the vehicle was driven by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. THEREfore, if a driver of the auto-rickshaw did not have a valid licence for driving the vehicle in question, then the appellant Insurance Company can avoid its liability. But, the onus of proving that the driver of the vehicle did not have a valid licence to drive the vehicle will squarely lie on the Insurance Company, because, it is the Insurance Company which seeks to avoid its liability under the policy on the ground that the terms of the policy had been violated. In this case, the Insurance Company took the stand that the driver of the auto-rickshaw which was involved in the accident was not duly licensed to drive the vehicle and to establish that fact it has examined R. W. 1 the Police Officer, who prosecuted the driver for an offence under section 304-A, Indian Perral Cycle and also marked Exhibit R-1 certified copy of the charge-sheet filed in the criminal case. R. W. 1 has in chief examination deposed that the driver of the auto-rickshaw had a license to drive a light motor vehicle at the time of the accident, but he did not have an endorsement on the licence authorising him to drive an auto-rickshaw. But, in crossexamination he concedes that the autorickshaw also will come within the definition of light motor vehicle. Exhibit R-1 which is a copy of the charge-sheet filed in the criminal case, against the driver, merely alleges that the driver did not have a valid licence to drive the auto-rickshaw. But, a mere charge sheet which is in the nature of an allegation cannot be taken to be positive proof of the fact sought to be established by the Insurance Company that the driver of the auto-rickshaw did not have a valid licence. In this case, the Insurance Company had not taken steps to call upon either the owner of the auto-rickshaw or its driver to produce the driver's licence by invoking the provisions of section 100-C (2) of the Motor Vehicles Act. The Insurance Company could have caused the production of the driver's licence by issuing a notice for producing the same either to the driver or to the owner of the autorickshaw. In the absence of the actual production of the driver's licence before the Court, it is not possible to assume that the licence which he had did not authorise him to drive the auto-rickshaw their as a private vehicle or as a public transport vehicle. Having regard to the evidence referred to, the Tribunal came to the conclusion that the Insurance Company has not established its plea that the driver of the auto-rickshaw was not duly licensed to drive the said vehicle. In that view the Tribunal held that the Insurance Company cannot escape its liability under the Insurance policy.