NATIONAL INSURANCE CO LTD Vs. N DEVADAS

JUDGEMENT

(1.) respondent no. 3 in motor accidents claims tribunal (sub- m.c.o.p. no. 25 of 1992 on the file of ordinate judge), tiruppur is the appellant in the above appeal. Respondent nos. 1 to 5 herein/claimants in the said petition prayed for a compensation of rs. 1,00,000 for the death of one gnanamani in a motor vehicle accident which took place on 2.6.91. The court below on the basis of oral and documentary evidence, passed an award for rs, 40,000 in favour of the claimants and directed respondent nos, 1 to 3 therein to pay the same. Aggrieved by the said award, national insurance co. Ltd. Alone has filed the present appeal.

(2.) heard the learned counsel for the appellant as well as respondents.

(3.) learned counsel for the appellant insurance company would contend that inasmuch as the rider of the vehicle in question, namely, moped no. Tci 7833 was not having licence to drive the same and having pleaded guilty by admitting the offence and paid fine in the criminal proceedings, the tribunal committed an error in directing the insurance company to pay the compensation on behalf of the owner of the vehicle in question. It is seen from the records that in the counter statement filed by the respondent no. 3 it is stated that the driver of the moped no. Tci 7833 did not have valid driving licence on the date of the accident and he was charge- sheeted under section 279 read with section 304-a,indian penal code. He had been convicted under section 3 read with section 177 of the motor vehicles act for not having a valid driving licence. Apart from the said plea, one manoharan was examined as rw 1 on the side of the insurance company. No doubt, rw 1 reiterated the plea taken by them in their counter statement. On the other hand, it is contended on the side of the respondent nos. 1 to 5 that merely because the rider of the moped had pleaded guilty before the criminal court for not having a licence, it does not mean that he was not having any licence, nor debarred from possessing the licence under the provisions of the act. It is true that exhs, a-2 and a-3 show that the rider of the moped was not having a valid licence to drive a two-wheeler and on the basis of his admission, fine was imposed on him by the criminal court. We are concerned with the liability of the insurance company in respect of the claim made by the victims. It is equally true that if there is any violation of the statutory condition or terms and conditions of the insurance policy, it is open to the insurance company to repudiate its liability. It is also well settled that the rider of the twowheeler should possess valid licence under the provisions of the statute. It is also settled in series of decisions that it is the bounden duty of the insurance company to discharge its burden that the rider of the moped was not having valid licence on the date of the accident, nor debarred from getting such a licence. Admittedly, except the interested oral evidence of rw 1, the appellant insurance company/respondent no. 3 before the tribunal had not taken any steps either to summon the records from the regional transport officer, or to direct the person concerned for production of valid licence. This aspect has not been disputed. No doubt, learned counsel for the appellant by relying on a decision of the apex court in united india insurance co. Ltd. V. Gian chand, 1997 0 acj 1065 (sc), contended that since the vehicle in question was driven by the person not having a valid licence, the liability cannot be fastened on the insurance company. After noting the fact that the car in question was being driven by a person who has no driving licence, ultimately held that the insurance c ompany is not liable to indemnify the owner. The perusal of the said judgment clearly shows that the insured had handed over the vehicle for being driven by an unlicensed driver. In other words, in that case, after knowing that the person who is going to drive the vehicle is not having licence, the insured had handed over the said vehicle to him. In such a situation, their lordships have held that the insurance company would get exonerated from its liability to meet the claims of third party. In our case, there is no evidence whether the owner of the vehicle in question was aware of the fact that the rider had no licence to drive a two-wheeler. Further, the record shows that except the oral evidence of rw 1, an officer of the insurance company, no steps have been taken by them to ascertain whether the driver was having a valid licence either before the accident or he was debarred from possessing the same at any point of time by examining the person concerned in the regional transport office. Now i shall consider various decisions in regard to the above aspect.