NEW INDIA ASSURANCE CO LTD Vs. GURMIT KAUR

JUDGEMENT

(1.) THE challenge in appeal here is to the liability of the insurance company for the compensation awarded.

(2.) A sum of Rs. 45,040 was awarded as compensation to the widow and children of Joginder Singh, deceased, who was killed in an accident with bus PUO 5426 which was insured with the New India Assurance Company. The bus driver, owner, as also the insurance company, were held to be jointly and severally liable for the compensation awarded.

(3.) THE insurance company sought to avoid its liability on the plea that the accident had been caused by the bus driver, Sohan Singh, who did not hold a valid driving licence at the time of the accident. A specific issue was framed to this effect. Sohan Singh, the bus driver, did not appear in the witness box, nor was any other evidence placed on record to show that he possessed a valid driving licence at the relevant time. Mr. G. S. Chawla, counsel for the insurance company, therefore, argued that this being the situation, no liability could be fastened upon the insurance company. Cited in support was the judgment of the High Court of Madhya Pradesh in Anand Insurance Co. Ltd. v. Hasanali [1975] ACJ 471, where it was held that when a specific plea is taken that the driver had no valid driving licence, it was for the driver to produce the licence as the insurance company could not be expected to call for the record of the Regional Transport Authority of each and every place in the country to show that no licence had been issued to the driver. This view was, however, contrary to that expressed by this court in Gurbachan Kaur v. Savita Kapoor [1984] 2 ACC 200 ; [1986] ACJ 212, where, following the judgment of the Supreme Court in Bishan Devi v. Sirbaksh Singh, AIR 1979 SC 1862 ; [1981] 51 Comp Cas 128 (SC), it was held that when a plea is taken that the driver of the offending vehicle was not duly licensed, it is the duty of the insurer to substantiate it. This was also so held by the High Court of Karnataka in M. Subramanya Bhat v. Gobindraj, AIR 1979 Kar 114. Following these precedents, it must be held that the burden lay upon the insurance company to establish that the bus driver did not hold a valid driving licence and as it had failed to discharge it, it cannot be absolved from liability.