RUBY GENERAL INSURANCE CO. LTD Vs. ESHARBAI

JUDGEMENT

(1.) THIS is an appeal by the insurer, Ruby General Insurance Co. Ltd., Calcutta, having its branch office at Indore, against the award of compensation made by the Motor Accidents Claims Tribunal, Mandleshwar, in claim case No. 8 of 1969.

(2.) THE Respondent No. 2 is the owner of truck No. M.P.O. 1873 and Respondent No. 3 was the driver of the said truck and in service of Respondent No. 2 on 19 -8 -69 when the accident took place on Burwaha -Indore road in which Rupchand, the husband of Respondent No. i, died The said Respondent No. 1 as a legal representative of the deceased claimed compensation amounting Rs. 50,000/. The Respondent No. 3 remained absent and the case proceeded exparte against him. The claim was contested by Respondent No. 2, the truck owner and the Appellant, the insurer. The defence of the Appellant was that Respondent No. 3 the driver had no driving licence and hence the Appellant as an insurer was not liable for compensation.

(3.) IT is not disputed that the truck involved in the said accident was insured with the Appellant. The Appellant wanted to get out of the liability to pay the compensation only on the ground that the Respondent No. 3, the driver, did not hold any driving license and hence under the conditions of the policy the Appellant was not liable to pay the compensation. The Appellant did not lead any evidence to prove that the driver of the truck had no driving license. The Appellant's witness Surendra Singh (N.A.W. 1), who is the office Superintendent in the Appellant company, has simply stated that the company did not pay for the damage of the truck because the driving licence was not produced. That does not mean that the driver had no license. Moreover the Appellant did not prove by legal evidence the alleged term of the policy that it shall not be liable to pay compensation in case the truck was driven by a driver without holding a license. As admittedly the Appellant is the insurer of truck, it cannot escape the liability to pay compensation without establishing the fact that under the contract it was not liable to indemnify the insured for compensation arising out of the fatal accident.