ORIENTAL FIRE AND GENERAL INSURANCE CO Vs. PAVANKUMAR

JUDGEMENT

(1.) The only point raised by the appellant-Insurance Company is that the driver-second respondent was not duly licensed to drive the vehicle (tractor) bearing No. APJ 6229 on the date of accident and that therefore the Insurance Company is not liable for payment of the amount awarded by the Tribunal below. Now the facts found are that the claimant is a minor boy and that he met with an accident on March 28, 1980 at about 6 p.m. when the tractor bearing APJ 6229 had run over him by the front wheel when he was playing in front of his house on the road leading to Quillaat Nizamabad. His left leg extending middle down to footall the muscles have been torn and in spite of best treatment rendered to him at Nizamabad and Hyderabad from March 29, 1980 to June 26, 1980, it was not cured and be was permanently became disabled. As a result, he laid the claim in a sum of Rs. 45.000/-. The Tribunal below awarded a sum of Rs, 32,000/- in all. Assailing the legality thereof, the appeal has been filed,

(2.) The sole contention raised by Sri Mangachary, learned Counsel for the appellant-Company is that the second respondent has not proved that he was holding a valid licence as on the date when the accident had occurred; the appellant has raised a specific plea but the Tribunal below has wrongly placed the burden on the appellant ; had the appellant had in its possession valid evidence and not placed, then the Court would have drawn an inference adverse to it the Court ought to have placed the burden on the second respondent that he was having a valid licence. Therefore the Tribunal below has committed error of law in awarding the amount as against the Insurance Company. Therefore, the only question that arises for consideration is whether the finding of the Tribunal below that ths appellant has not established that the second respondent is not having a valid licence, is sustainable in law.

(3.) Under Section 96 (2) (b) (ii) of the Motor Vehicles Act (Act 4 of 1939) for short, "the Act", the insurer is entitled to raise all the pleas open to it to defend the claim for compensation including the ground that the vehicle was driven by a person who was not duly licensed. Therefore it is open to the Insurance Company to raise the plea that the second respondent was not possessed of a valid licence. Then the question is whether the appellant has discharged the burden. Sri Mangachary is right in contending that if the appellant has been in possession of evidence and it withheld the same, an adverse inference could be drawn against the appellant. But here it is one of the pleas taken by the appellant. The specific plea taken by the appellant is that the second respondent is not possessed of a valid licence on the date when the accident had occurred Therefore, the burden is on the Insurance Company to establish that fact by adduction of material evidence in that regard viz.. the licence issued by the competent authority and its validity thereof. If some evidence has been adduced by the appellant to show that the driver is not holding a valid licence as on the date of accident, then, necessarily the burden shifts on the driver or the claimant to establish that the driver is having a valid licence. When the appellant has not placed any material before the Court, then it is a case of non-adduction of any evidence to substantiate its plea. In an analogous situation, the Supreme Court had to consider a case in Bishan Devi vs. Sirbaksh Singh. Kailasam, J. speaking for the Court has considered the circumstances and held at Para 12 thus : "Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed......It is the duty of the insurer to have substantiated the plea.... " Thus the Supreme Court has starely put the question that the person who raised the plea viz., the insurer, the burden is on the insurer to establish by adduction of evidence that the driver is not having a valid licence. In similar circumstances, the Rajasthan High Court in Bhairon vs. Nandram has considered the question where some plea was taken by the Insurance Company and no evidence was adduced to prove that the driver was not having a valid licence, it was held that the Insurance Company having failed to adduce evidence in disproof of the fact that the driver is not having a valid licence as on the date of accident the claimant is entitled to compensation claimed as against the Insurance Company. Thus, it is well settled that if a specific plea is taken by the Insurance Company under Section 96 (2) (b) (ii) it is for the Insurer to substantiate the same by adduction of evidence as regards the validity of the licence possessed of by the driver. Mere taking a plea does not amount to proof of the allegation. It is only an averment. Unless it is substantiated by adduction of acceptable evidence the averment or plea cannot be said to have been proved. Unless there is proof of it the question of disproof by the claimant or the driver does not arise. Accordingly I do not find any illegality in the award passed by the Tribunal warranting interference. The appeal is dismissed. No costs.