ORIENTAL INSURANCE CO. LTD. Vs. TIRATH KAUR

JUDGEMENT

(1.) BY this common judgment, C.I.M.A. No. 99 of 1987 and the unnumbered and unregistered cross-objections shall be disposed of together.

(2.) THIS appeal is directed against the judgment and award of the Motor Accidents Claims Tribunal, Jammu, delivered in File No. 48/Claim of 1978 on 31.8.1987. The appellant in this Court is the insurer of the offending vehicle. The brief facts leading to the filing of the present appeal are: that deceased Hira Singh aged 45 years died on 26.4.1978 as a result of an accident because of rash and negligent driving of vehicle No. JKN 6193 by respondent Jasbir Singh. The accident in question took place at about 9 a.m. on 24.4.1978 when the deceased Hira Singh was standing on the extreme left side of Jammu-Satwari Road near New Transport Yard and was talking to one Devi Singh, who was also injured during this accident. The vehicle in question was driven at the relevant time by respondent Jasbir Singh rashly and negligently. The deceased was removed to S.M.G.S. Hospital, Jammu where he died on 26.4.1978 at 1.30 a.m. The vehicle in question was insured with the appellant insurance company for the relevant time vide policy No. 2616/ 2/15/MB/71/77. The ownership and the insurance of the vehicle have been admitted by the appellant but it was averred by the appellant before the Claims Tribunal that the vehicle was not being driven by an authorised person at the relevant time. On the basis of the pleadings of the parties the following issues were framed by the Tribunal for adjudication:

(3.) IT was for the insurance company to have proved before the Claims Tribunal by leading positive and affirmative evidence that respondent Jasbir Singh did not hold a valid driving licence in order to absolve the insurance company of its liability to satisfy the award. The onus of proving the fact of Jasbir Singh not being a qualified driver was upon the appellant and that onus could be discharged only by means of the appellant placing on record sufficient material which would lead to a positive inference that Jasbir Singh did not hold a driving licence. The mere allegation that because Jasbir Singh was employed as a conductor and was thus not authorised driver of the vehicle, is of no substance. Under Section 110-A of the Motor Vehicles Act, as it stood at the relevant time, a person was entitled to apply for grant of compensation and under Section 96 of the Motor Vehicles Act, as it stood at the relevant time, an insurer was under an obligation to indemnify the award passed against the owner and pay the compensation amount.