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1996 DIGILAW 696 (KAR)

M. A. JESUDIAN v. ISMAIL

1996-12-06

M.B.VISHWANATH

body1996
M. B. VISHWANATH, J. ( 1 ) HEARD the learned Counsel for the appellant-claimant and the learned Counsel for the Insurance Company. ( 2 ) THIS appeal has been filed by the appellant-claimant, being aggrieved by the judgment and award passed by the learned member of the Motor Accidents Claims Tribunal, Bangalore in m. V. C. No. 852 of 1986 on 29-12-1990. ( 3 ) BY the impugned judgment, the learned Member awarded compensation of Rs. 50,000/- and made the liability joint and several with respect to respondents 1 and 2 (respondent 1-driver and respondent 2-owner before the Tribunal ). ( 4 ) THE learned Member dismissed the claim petition as against the third respondent-Insurance Company. In this appeal, the Insurance Company is third respondent. ( 5 ) IT is stated in the appeal memorandum that the compensation awarded is inadequate. But at the time of the argument, the learned Counsel for the appellant-claimant did not press this point. ( 6 ) THE only grievance of the appellant-claimant is that Motor Accidents Claims Tribunal has committed a mistake in law in not holding the Insurance Company-respondent 3 liable. ( 7 ) IN para 11 of the judgment, the learned Member of the Tribunal has observed that "as per the contents of Ex. P-41 and p-42 it is clear that the first respondent had no valid driving licence to drive the autorickshaw MED 772 as on the date of the accident. " ( 8 ) I have looked into the records of the Court below. Ex. P-41 and P-42 are medical chits issued by the St. Martha's Hospital. There is absolutely nothing in these medical chits to show that the first respondent-driver had no valid driving licence to drive the autorickshaw. ( 9 ) THE learned Member has committed an other mistake inpara 14 of his judgment. The learned Member has observed that"the charge-sheet has been filed by the Investigating Officer against the first respondent for offences punishable under sections 279 and 338, Indian Penal Code and under Section 89 (a) and (b) read with Section 118 of Motor Vehicle Act as well as under Section 3 (1) read with Section 112 of the Motor vehicles Act. So, the first respondent had no valid driving licence as on the date of the accident". ( 10 ) FROM the Lower Court Records, it is abundantly clear that charge-sheet has not been produced. So, the first respondent had no valid driving licence as on the date of the accident". ( 10 ) FROM the Lower Court Records, it is abundantly clear that charge-sheet has not been produced. It is obvious that the learned Member has assumed something in the absence of any material to base his assumption. ( 11 ) WHAT is produced, as could be seen from the Lower Court Records is the First Information Report-Ex. P-137. As per Ex. P- 137, the complaint has been registered against the driver for offences punishable under Sections 279 and 337, Indian Penal code. I have carefully gone through the contents of Ex. P-137. Nowhere in Ex. P-137 has it been stated that the driver had no valid driving licence at the time of the accident. ( 12 ) IT is contended by the learned Counsel for the Insurance Company that the Insurance Company has taken up the stand that the driver had no valid licence. ( 13 ) I have gone through the written statement/objectionstatement filed by the Insurance Company. Nowhere in the written statement has it been specifically contended that the driver of the autorickshaw at the time of the accident had no driving licence. ( 14 ) WHAT is stated in the written statement is that there is breach of conditions of the Insurance Policy by the owner of the autorickshaw. It is not stated that the driver had no valid licence. The breach of the conditions is attributed in the written statement to the owner, not to the driver. ( 15 ) IT is abundantly clear that the Insurance Company hasnot taken a definite stand that the driver had no valid licence at the time of the accident. This contention is taken afresh at the time of the arguments in this appeal. No weight can be attached for such an argument. It has been laid down by this Court in the decision in United India Fire and General Insurance Company limited, Bangalore v Nagarathna and Others, that it is for the insurance Company to summon the driver to establish the breach of condition of the policy and the burden of proof was on the Insurance Company. In the instant case, the Insurance company has failed to show that the driver had no valid licence. In the instant case, the Insurance company has failed to show that the driver had no valid licence. ( 16 ) IT has been laid down by the Supreme Court in the decision in Narchinva V. Kamat and Another v Alfredo Antonio doe Martins and Others , that the onus is on the Insurance company to prove that the driver had no driving licence at the time of accident. ( 17 ) IN the instant case, as I have already stated the Insurance Company did not specifically take up the stand in the written statement that the driver had no valid licence at the time of accident nor did it place any evidence to show that the driver had no licence. ( 18 ) THE learned Counsel for the Insurance Company relied on the decision of the Supreme Court in Kashiram Yadav and another v Oriental Fire and General Insurance Company and others , to press the point that the Insurance Company is not liable. ( 19 ) IN this authority of the Supreme Court, the onus of the Insurance Company had been discharged from the evidence of the insured (owner) himself. The owner took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This was not proved. Secondly, the owner took a defence stating that the vehicle at the relevant time was driven by a licensed driver. This was also proved to be false. The authority of the Supreme Court is clearly distinguishable on facts. In the instant case, the owner has remained ex parte and the Insurance Company did not take any steps to summon the owner and examine. Kashiram Yadav's case supra, is clearly not applicable to the facts of this case. ORDER ( 20 ) FOR the aforesaid reasons, I pass the following order. ( 21 ) IT is held that the Insurance Company is also liable to pay the compensation amount awarded by the Tribunal. The liability of the Insurance Company (respondent 3) and respondents 1 and 2 is joint and several. The Insurance Company is granted three months time to deposit the compensation amount. The appeal allowed as stated herein. --- *** --- .