NEW INDIA ASSURANCE CO. LTD Vs. SUBBU

JUDGEMENT

(1.) THIS Appeal coming on for hearing on Wednesday, the 5th day of March, 1986 and Thursday, the 6th day of March, 1986 and on this day, upon perusing the petition of Appeal the order of the Lower Court, and the material papers in the case, and upon hearing the arguments of Mr. R. David of M/s Kurian and Associates, Advocates for the Appellant, and of Mr. S. Sadhasivarn for Mr. N. Nallappan, Advocate for Respondents 1 to 5 and the 6tb Respondent not appearing in person or by Advocate, the Court made the following Order:

(2.) THE insurance company challenges its liability under the Motor Vehicles Act to pay compensation to the victims who met with an accident, on the sole ground that the driver who drove the vehicle did not posess the requisite licence and that therefore there is a clear violation of the contract of insurance. This argument in turn depends upon the further contention that the trailers and tractor arc medium goods vehicles, as defined in Section 2(14) of the Motor Vehicles Act, 1939, hereinafter referred to as the Act. The learned Counsel for the appellant would also vehemently rely upon the admission of the driver examined as R.W.2, who deposed that he held a licence only for light motor vehicle. To support his contention the learned Counsel relies upon a decision of a division bench of this Court in E. Enjanadevi v. Arumugham and Anr. 1983 A.C.J.625.

(3.) IT is therefore that the Supreme Court Has pointed out that as long as it is the insurance company which asserts that there has been a breach of the terms of the policy it is for if not only to allege but also to prove that fact like any other fact. In this case the breach of the terms of the policy relates to the appellant's contention that the driver of the vehicle concerned did not have a valid licence to drive such vehicle which, according to him, is a medium goods vehicle. It is here the learned Counsel for the appellant relies upon the admission of the driver R.W. 2 that he had only a licence for light motor vehicles. According to the learned Counsel for the appellant, as long as there is the admission of the driver himself that he possessed only a licence for light motor vehicles, the insurance company had discharged the burden. I am unable to agree, for the liability of the insurance company is not as against the driver, but as against the claimants who were victims, in the accident. It is not as if there are no records relating to the licence possessed by, or issued to, the driver concerned. The best evidence is such record, even if the driver were to refuse to produce his licence. In this case, the insurance company had not taken any steps to summon the best record. I cannot rule out the possibility of the driver supporting the case of the insurance company. I reiterate that unless the insurance company had produced the best evidence on this aspect, it cannot escape from the liability fastened unto it under the Act. Further the liability is foisted on the insurance company under the Act Of course a defence is available to the insurance company under the contract of insurance, provided it establishes that there had been a breach of the terms of the insurance policy which would enable it to plead that because of such breach it could escape from its liability under the Act.