PRABHA SHANKER SHUKLA Vs. KANT TIWARI

JUDGEMENT

(1.) THIS First Appeal From Order has been filed by the insured (owner of the vehicle) against the Award dated 21.12.2005, passed by the Motor Accident Claims Tribunal (hereinafter called the Tribunal), wherein the Tribunal has awarded compensation to the claimants to the tune of Rs. 1,52,000.00. Under the Award the said amount is to be paid to the claimants by the respondent No. 3, the New India Assurance Company Limited (hereinafter called the insurer), but the insurer can recover the same from the insured as at the time of the accident the vehicle was being plied by a person not having a valid driving licence.

(2.) THE facts and circumstances giving rise to this case are that on 28.7.1998 at 9.20 p.m. one Amar, aged about 5 years, was travelling in Jeep No. U.P. 63 A-1418 along with the family members. When the said vehicle reached near the village Semari, it met with an accident with another Jeep No. M.P. 17 A-3387 which was being driven rashly and negligently. Other passengers were seriously injured but the child Amar died on the spot. A criminal case was registered against the driver under 279/338/427/304A I.P.C. The post-mortem was conducted on the body of the deceased child Amar on 29.7.1998. His parents Shri Kant Tiwari and Smt Bhanu Tiwari, the respondent Nos. 1 and 2, filed Claim Petition No. 43 of 1999 before the Tribunal under the provisions of Sections 140/166 of Motor Vehicles Act, 1988 (hereinafter called the Act), claiming a sum of Rs. 3,25,000.00 as compensation. The Insurance Company as well as the present appellant-insurer contested the claim taking large number of pleas. It was admitted by the insurer that the vehicle had been insured with it, but it contended that it was not liable to pay any compensation, for the reason that the driver of the vehicle was not having any valid driving licence.

(3.) SHRI Ram Singh, learned Counsel for the appellant has raised the sole ground before us that it was the sole and exclusive responsibility of the insurer to prove that the vehicle was being driven by the person having no valid licence and the said onus/burden has not been discharged by it. Therefore, no recovery can be made from the insured. In support of his submissions a large number of judgments have been cited wherein it has been held that the onus to prove that the vehicle was being driven by the person having no valid licence lies upon the insured, e.g., Naranva v. Kamat and Anr. v. Alfredo Antonio Doe Martins and Ors. ; National Insurance Co. Ltd. v. Santro Devi and Ors. ; and Punam Devi and Anr. v. Divisional Manager, New India Assurance Co. Limited and Ors. .