SUNEEL AHUJA Vs. MAHIPAL SINGH

JUDGEMENT

(1.) The instant appeal has been filed by owner of Bus No. UP14-F-7339 against the judgment and award dated 28.02.2003 passed by the Motor Accident Claims Tribunal/District Judge, Meerut in M.A.C. No. 320 of 2002 by which a compensation of Rs. 90,000/- together with interest at the rate of 10 % per annum from the date of the award up to the date of its satisfaction, has been awarded to the claimant-respondent for the injuries suffered by him in an accident which took place on 25.02.2001 between a Matador No. UP 12-B-5143, in which the claimant was traveling, and Bus No. UP14-F-7339, which was owned by the appellant. The award has been passed against the owner of the Bus and the benefit of insurance has been denied to him

(2.) I have heard Sri Siddharth for the appellant, Sri Manish Kumar Nigam for the respondent No.2 (the insurer of Bus No. UP14-F-7339) and Sri Bhual Vishwakarma for the respondent No.3. No one appeared on behalf of the claimant-respondent.

(3.) The sole point that has been pressed before this court is with regards to denial of the benefit of insurance to the appellant despite the fact that the vehicle was duly insured with the respondent No.2 (the National Insurance Co. Ltd.). Sri Siddharth, learned counsel for the appellant, submitted that an insurance policy was filed by the appellant to show that the vehicle was duly insured. It was submitted that no evidence was led by the Insurance Company to prove that the vehicle in question was being driven contrary to the terms and conditions of the certificate of insurance, yet the Tribunal, by placing a wrong burden on the owner of the vehicle to prove that the vehicle was being driven by a duly licensed driver, has denied the benefit of insurance. Relying on a decision of the Apex Court in the case of Narchinva V. Kamat and another v. Alfredo Antonio Deo Martins and others, 1985 2 SCC 574; it has been urged that if a breach of a term of a contract of insurance is pleaded by the Insurance Company, then the burden is on the Insurance Company to prove its breach. Relying on a decision of the Andhra Pradesh High Court in the case of United India Insurance Co. Ltd. v. Madiga Thappeta Ramakka and others, 1995 ACJ 358, it has been urged that mere non-production of driving licence or non-examination of the driver of the vehicle is not enough to deny an insurance claim of the insured because in such a case, an application ought to be moved by the Insurance Company to summon the driver and examine him and if no application is moved by the Insurance Company to summon the driver and examine him then it could be said that the burden to prove a statutory defence has not been discharged. Likewise, reliance has been placed on a decision of the Apex Court in the case of Poonam Devi and another v. Divisional Manager, New India Assurance Co. Ltd. And others,2004 2 TAC 313 so as to contend that 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 or 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. Reliance was also placed on two Division Bench decisions of this Court in the case of Oriental Insurance Company Ltd. v. Munshi Ram and others, 2001 3 TAC 2 and Oriental Insurance Co. Ltd. v. Kamla Devi and others,2003 1 TAC 462, which are also to the effect that the burden is on the insurance company to establish that the driver of the truck did not have a valid driving licence.