JAGMOHAN SINGH Vs. DEV RAJ SAINI

JUDGEMENT

(1.) The appeal is by the owner of the vehicle which was involved in the accident against whom the liability was cast on the ground that there had been violation of terms of policy, in that the driver was not shown to have held a valid driving licence. The Insurance Company merely relied on the fact that the driver and the owner had remained ex parte and, therefore, it must be taken that the driver did not have a valid driving licence.

(2.) The whole approach of the Tribunal is erroneous. There is no presumption that a driver, who absent himself from Court, is not possessed of driving licence. It is a fundamental precept of law that the burden of proof of establishing violation of terms of policy which is a permissible defence under Section 149 of the Motor Vehicles Act to state that the driver did not have a valid driving licence was on the Insurance Company. The Motor Vehicles Act itself allows for the manner of securing information about the motor vehicle. Section 133 of the Motor Vehicles Act provides that a motor vehicle driver or the conductor shall on demand by a police officer give an information regarding the name, address and licence held by the driver. Section 134 of the Act cast a duty on the driver in case of accident to give on demand by a police officer any information required of him. Section 134 (c) of the Act provides that a driver shall give information in writing to the insurer which has issued the certificate of insurance, the details of insurance, name, date of accident, the name and particulars of driving licence. The said Section 134 (c) is therefore a procedure which an Insurance Company shall invoke in order to obtain the details of driving particulars of the driver. Without putting the process in place, the Insurance Company cannot be heard to contend before a Tribunal that by the fact that the driver remained ex parte, it must be taken that he did not have a valid driving licence. Nothing was brought on record to show that the Insurance Company had issued the notice and there had been no response from either the driver or the owner that inevitable conclusion has to be that the Insurance Company did not discharge the onus of proof which was on the insurer to establish the violation of terms of policy.

(3.) During the pendency of appeal, both parties claimed that the licence was verified and while the owner would say that the licence was verified by the Investigator of the Insurance Company to be true, the counsel for the Insurance Company states that on verification, it was found to be not true. I discard both these versions and root my reasoning on the first principle of law relating to burden of proof.