NATIONAL INSURANCE COMPANYLTD Vs. MOHD ASIF

JUDGEMENT

(1.) -This appeal has been preferred by the insurance company by making the claimants as well as the owner of the vehicle as respondents herein. No one appeared on behalf of the owner during the course of hearing on several occasions. It has been contended by the parties that the owner remained absent even throughout the proceedings before the Tribunal.

(2.) AN issue was framed by the Tribunal as to whether the driver of the vehicle was possessing a valid licence or not? In absence of the owner, obviously that issue stood settled between the contesting parties, i.e., the insurance company and the claimants. Admittedly the insurance company neither called the owner nor the driver to produce as witness to prove its case. On the other hand a plea has been taken about the non-availability of valid licence by the driver of the vehicle at the time of accident. The appellant contended that in spite of service of the summons, no one i.e., neither the owner nor the driver appeared.

(3.) IN New INdia Assurance Co. Ltd. v. Krishna Murari and another, 2007 ACJ 791, the Division Bench of this Court has considered the case from the angle of third party who sustained injury or death. It has been categorically held that the liability to prove that the vehicle was being driven by the person having no valid licence lies upon the insurer. The insurer and the insured have been made jointly and severely liable to pay the compensation to the claimants. It is the duty of the insurer to satisfy judgment against persons insured in respect of third party risk and if the insurer satisfies that insured had violated the terms and conditions stipulated in the insurance policy, it would be entitled to make the recovery of that amount from the insured. Even in the said judgment the question of consideration of the driving licence arose and Court held that this Court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.