H. G. RAMACHANDRA RAO v. MASTER SRIKANTHA — 1997 DIGILAW 21 (KAR)

H. N. TILHARI, J. ( 1 ) THIS appeal which arises from the judgment and award dated 26-10-1991, by Sri K. Ramannu (Member of the Motor Accident Claims Tribunal-VII, Bangalore City ). in M. V. C. 1104 of 1986, has been preferred by the registered owner/owner of the Motor Vehicle (Scooter) bearing No. MEN 5654. ( 2 ) THE facts of the case in brief are that the claimant- Master Srikantha, who is respondent No. 1, in the appeal, who was aged about 7 years and he was studying in II Standard at the relevant time, on 9-7-1986, at 12 noon, was walking from West to East on Subramanyanagar, Bangalore. At that time, the 2nd respondent in the appeal, namely Sri B. G. Rajagopal, who has been the Ist respondent in the claim petition was riding the Scooter bearing No. MEN 5654, came from the same direction in the rash and negligent manner with the high speed without blowing horn, and suddenly took the wrong turn and dashed with the petitioner from behind, consequently, the claimant - minor fell down and sustained grievous injuries on the vital part of his body. Before I mention further facts, I think it will be proper to mention that in some part of the judgement, the vehicle in question has been mentioned as MEM and somewhere, it has been described as MEN 5654. The Counsels for both the parties tell that the correct number in MEN 5654. The boy - claimant having fallen and having sustained grievous injuries was removed to K. C. General Hospital, Bangalore, where he was X-rayed for the wounds and X-ray revealed that the claimant suffered injuries of fracture of lower shaft of tibia as well. According to him, the claimant's father had incurred the expenditure of Rs. 2000/-on medical expenses. The claimant alleged that as a result of injuries, he cannot walk fast, sit or stand for long and in total he has been deprived of his normal activities in life on account of accident and he cannot attend his classes nor can he concentrate on his studies. According to the claimant, Criminal Case under Sections 279 and 338 of I. P. C. was registered against the rider. The claimant made a claim against the rider, owner and the Insurer of the scooter in all for Rs. According to the claimant, Criminal Case under Sections 279 and 338 of I. P. C. was registered against the rider. The claimant made a claim against the rider, owner and the Insurer of the scooter in all for Rs. 77,000/- only and alleged that all of them are liable to pay the compensation. ( 3 ) THE claim was contested by respondents 2 and 3, namely, the registered owner and the Insurance Company. Respondent No. 1- Rajagopal, driver of the vehicle scooter did not appear in person or through his counsel and therefore, the proceedings of the case did proceed ex parte against him. The registered owner in the case took the defence that he has sold the vehicle on 5-8-85, to one Venkatesh Murthy and the said Venkatesh Murthy was in actual possession of the vehicle. He alleged, that 'he' the respondent No. 2, was neither in control or ownership of the vehicle and so, he was not liable to pay any compensation and as such, the claim was liable to be dismissed against him. He denied the claimant's case that the scooter was being driven in a rash and negligent manner. He denied that the claimant was entitled to any compensation. ( 4 ) IN the written statement filed on behalf of respondent No. 3 the claimant's case was denied that accident took place due to rash and negligent driving of thc scooter No. MEN 5654, instead it was stated that petitioner himself was rash and negligent and without any caution, the petitioner- claimant ran across the path of the scooter which was driven carefully by respondent No. 1. Respondent No. 3, further stated that he had no information about the accident from the owner. It was further asserted that the claim of Rs. 77,000/- as compensation is arbitrary. By way of amendment, the following plea was raised on November 9th 1990. The rider of the scooter MEN 5654, did not possess the valid licence on the date of accident and further he has been prosecuted for offence of being non-licensee under Section 3 of the K. M. V. rules and on his plea of guilt, he has been sentenced to payment of fine before the Magistrate. The rider of the scooter MEN 5654, did not possess the valid licence on the date of accident and further he has been prosecuted for offence of being non-licensee under Section 3 of the K. M. V. rules and on his plea of guilt, he has been sentenced to payment of fine before the Magistrate. It was further asserted that the insured has consciously permitted non-licensee to use the vehicle it amounts to breach of condition and consequently, the 3rd respondent is not liable in law to satisfy the claim arising out of the said vehicle including the one in this petition and therefore, claim against 3rd respondent is liable to be dismissed. ( 5 ) ON the basis of the pleadings of the parties, the Tribunal framed the following issues :1. Whether the accident resulting into injuries to the minor petitioner Srikantha was due to the rash and negligent driving of the scooter, bearing No. MEN 5654 by its rider?2 Whether the scooter bearing No. MEN 5654 was insured with the 3rd respondent - Insurance Company at the time of the alleged accident?3 Whether the petitioner is entitled to compensation? If so, to what amount and from whom?4 Relief?addl. Issue No. 5 :5 Whether vehicle in question was transferred on 5-8-85 to one Sri N. Venkatesha Murthy and as such the respondent No. 2 is not liable to pay any compensation? ( 6 ) THE Tribunal after having tried the issues, held : (a) that the accident in question causing injuries to minor petitioner-Srikantha, had taken place on account of the rash and negligent driving of scooter in question bearing number MEN 5654 by its rider. It further found that the claimant was entitled to the compensation to a tune of Rs. 18,000/- with current interest at the rate of 6% per annum from the date of the petition till the date of payment. It found that the scooter in question had been insured with respondent No. 3, but it dismissed the claim against the Insurance Company on the ground that respondent No. 1rajagopal was not holding a valid licence to drive the same and therefore, Insurance Company was not liable to pay. The Tribunal further found that the theory set up by the appellant - the registered owner to the effect that he had sold the vehicle to Venkatesh Murthy on 5-8-1985, was false and incorrect and Exs. The Tribunal further found that the theory set up by the appellant - the registered owner to the effect that he had sold the vehicle to Venkatesh Murthy on 5-8-1985, was false and incorrect and Exs. R2 and 3 appeared to it as the documents concocted for the purpose of the case in order to defraud the rights of the minor-petitioner, as the subsequent event, namely Exs R-7, which is a subsequent policy taken with reference to the vehicle in question on 23-9-1985, had also been taken in the name of Sri H. G. Ramachandra Rao, the present appellant, namely the registered owner of the vehicle, as on the date of this case. On that basis, the Court found that the theory set up by the present appellant was false and really on the date of accident, respondent No. 2-H. G. Ramchandra Rao in the claim petition, that is, the present appellant happened to be the owner of the vehicle and as such, the Tribunal decreed the claim and awarded the compensation to the claimant-petitioner against respondents 1 and 2 in the claim petition, namely respondent No. 2 and appellant in the memo of appeal, but dismissed the claim petition against Insurance Company. Having felt aggrieved with the award given by the Tribunal, the registered owner of the vehicle has preferred this appeal. ( 7 ) I have heard Smt. Hemavathi, holding brief for Sri H. R. Ananthakrishna Murthy, learned counsel for the appellant at good length. I have also heard Sri P. B. Raju, learned counsel for respondent No. 3 - the United India Insurance Company for good length. ( 8 ) ON behalf of the appellant, two contentions have been raised finally. Firstly, it had been contended that the finding recorded by the Tribunal to the effect that the theory of vehicle having been transferred by the appellant to Venkatesh Murthy on 3/5-8-1985, has been farce and false and Exs. R2 and 3, are forged documents is erroneous. Smt. Hemavathi, further contended that really Exs. R2 and 3, prove the transfer of the vehicle by the appellant in favour of Venkatesh Murthy, who in turn might have handed over the possession thereof to Rajagopal. As such, the award passed against the claimant-appellant is erroneous on facts on record and law. R2 and 3, are forged documents is erroneous. Smt. Hemavathi, further contended that really Exs. R2 and 3, prove the transfer of the vehicle by the appellant in favour of Venkatesh Murthy, who in turn might have handed over the possession thereof to Rajagopal. As such, the award passed against the claimant-appellant is erroneous on facts on record and law. The second submission learned counsel for the appellant is to the effect that the liability should have been fastened on the Insurance Company-respondent No. 3, instead on the appellant. She submitted that the Tribunal committed error of law apparent on the face of record in reading Ex. R6, as containing the admission of respondent No. 1 as well as in Exs. P4 and P3, as containing the admission of Rajagopal that he had no valid licence with him. Smt. Hemavathi, further contended that the burden did as well lay on the Insurance Company to prove that there was any breach of condition on the part of the appellant, even when he was the registered owner, in order to get rid of the liability to pay off the compensation. The learned counsel for the appellant submitted that there is no evidence on record which may prove or may be said to prove that the rider of the vehicle was not having the driving licence. The learned counsel-Smt. Hema, submitted that the evidence of the Sub-Inspector in this record was also not reliable, as such the finding of the Tribunal holding that respondent No. 3, was not liable and the liability to pay compensation was that of the appellant only was erroneous in law. The learned counsel for the appellant submitted that if the appellant is liable to pay the compensation, the liability of Insurance Company-respondent No. 3, also continues and it continues to be liable and it ought have been held liable to pay along with the appellant if at all. On behalf of the opposite parties like respondent No. 2, these two contentions were challenged. The learned counsel for the respondent No. 3-Insurance Company, Sri Raju, submitted that the burden to prove that the rider was having a driving licence did lie on the shoulders of either the claimant or on the shoulders of the registered owner of the vehicle which they failed to discharge and therefore, there is no liability of the Insurance Company to pay that amount. It has further been contended that if any burden did lay on the Insurance Company, it stood discharged when S. I. was produced in witness box on one hand and on the other hand, on the basis of the defence taken by the real owner, that is the appellant - the registered owner took the plea to the effect that it had transferred the vehicle to one Venkatesh Murthy and it has not been shown whether Venkatesh Murthy was holding a driving licence and Rajagopal was having a valid licence as well. ( 9 ) THE learned counsel for both the parties placed reliance on certain decisions which will be referred hereinafter :none has appeared on behalf of the claimant nor on behalf of Rajagopal. Rajagopal also did not appear in the trial Court after service of the notice. ( 10 ) I have applied my mind to the contentions made by the learned counsel for both the parties. As regards the first contention of the learned counsel for the appellant that the appellant had transferred his vehicle to Venkatesh Murthy and thereafter, Venkatesh Murthy would have transferred to Rajagopal or someone else. The material evidence on record which has been perused by me and which has also been examined by the Court below, really shows that this was a fake plea taken by the appellant in order to save his skin. The reasons given by the Tribunal appear to be justified and strong. There is no mention of any witness at all on behalf of respondent-3. That transaction had taken place in presence of and was witnessed by any one. The witness mentioned R-2 is one Nanjappa. He has no where deposed that Venkatesh Murthy had signed the deed in his presence and that the identifies the signatures in order to say that H. G. Ramachandra Rao signed before him. Nanjappa was produced as R. W. 2 to prove Ex. R2. His statement has been read over before me and translated into English by Smt. Hemavathi, learned counsel for the appellant. Nowhere, his statement showed that he had identified the signatures of either H. G. Ramachandra Rao or that of Venkatesh Murthy on Ex. P2, that those signatures contained in the documents are those of H. G. Ramachandra Rao and Venkatesh Murthy and those very signatures were made by those persons in his presence. Nowhere, his statement showed that he had identified the signatures of either H. G. Ramachandra Rao or that of Venkatesh Murthy on Ex. P2, that those signatures contained in the documents are those of H. G. Ramachandra Rao and Venkatesh Murthy and those very signatures were made by those persons in his presence. This witness only identifies his own signatures. When a witness has been produced to prove the execution of the documents, he had to state on oath about the execution of the document and he has to state that the document has been signed by the persons and the signatures on the documents contained are of those persons, who made before me. There is no such statement or deposition made by R. W. 2. who has been produced, as such this document does not appear to have been proved by any cogent evidence. As regards Ex. R-3, no witness has been produced to prove it which is stated to be delivery note. Apart from that only circumstance which goes against the appellant in this regard is that this vehicle being transferred and its possession being delivered to Venkatesh Murthy on 5th of August, 1985, then the insurance policy would not have been taken in respect of this very vehicle again in the name of H. G. Ramachandra Rao, the registered owner on 23-9-1985. An another circumstance appears from this reading of these two documents that if on Ex. R2, Venkatesh Murthy had made the endorsement that he had taken the delivery of the Scooter MEN 5654, as mentioned in Ex. R2, there was no need for execution of R-3 separately. It appears that best efforts were made to forge the document in such a way, that Court may be made to believe at time necessary that vehicle had been transferred. These circumstances definitely prove nothing, but an effort had been made to forge the documents and the Tribunal has rightly held that theory of transfer of vehicle on 5th of August, 1985, had been as false. The reference was made to the statement of S. I. , who had been examined as R. W. 3. His statement also does not appear to be reliable. The reference was made to the statement of S. I. , who had been examined as R. W. 3. His statement also does not appear to be reliable. If he had after the occurrence, was making enquiries as to whom the vehicle did belong, then some memo or record of enquiry should have been maintained and produced and statement of persons should have been recorded by the Police Officer, he only says that after having received the intimation of the accident to the effect that one H. R. Ramachandra Rao, was the owner of the vehicle, then only he made enquires from Ramachandra Rao and came to know that he had sold the vehicle to Venkatesh Murthy and then, enquired the said Venkatesh Murthy and came to know that Venkatesh Murthy has sold his vehicle to 1st respondent-Rajagopal. He very clearly stated that, I have not recorded the statements of Rajagopal or Venkatesh Murthy. This statement was made in 1991. Occurrence had taken place on July 9th, 1986. When he has not recorded any statements, how could he remember the statements in ordinary course of time, instead of making enquiries if they would have been recorded. In this view of the matter, the statement in this regard by S. I. is also not reliable. The vehicle had been registered in the name of appellant, no intimation of alleged transfer was even given either by the appellant or Venkatesh Murthy or anybody to the Transport Authorities. No certificate of transfer of ownership has been produced. In such circumstances in my opinion, the appellant failed to prove the said transfer and the theory of transfer was a concoction and it was farce and false. Once it is found that it has not been established, then it is beyond doubt clear that apart from respondent No. 1, respondent No. 2, was also liable to pay the compensation. ( 11 ) THE Full Bench of this Court consisting of Hon'ble K. A. Swami, the Acting Chief Justice, S. A. Hakeem and P. K. Shyamsundar, JJ, in the case of Paragounda v. Bhimappa, ILR 1992 Kant 3709: (AIR 1993 Kant 103), after a detailed consideration of the relevant provisions of law and the case law on the subject, has been pleased to observe under (at Pp. 107 and 108 of AIR) :"after having referred to Section 31 of the Act, the Full Bench observed: "these provisions have nothing to do with the ownership of the vehicle as it is well settled that the transfer of ownership of a vehicle, being a moveable property, is governed by the Sale of Goods Act. The said provisions only provide for the regulation of the use of motor vehicles in public places and to impose penalty if the requirements of the Act are not fulfilled. Failure to notify the transfer visits the transferor or/and the transferee with certain penal consequences; that does not however make the transfer invalid. The endorsement of transfer in the record of Registering Authority is also not a condition precedent to the transfer to take effect, nor does it deal with the legality or otherwise of the transfer which must be determined under the general law and also the Sale of Goods Act. Their Lordships further observed :the proper view appears to be that unless it is proved that the "registered owner" has ceased to be the owner of the vehicle he continues to be liable in the event of an accident for the claims of the third parties. In other words, the onus to establish cessation of his title in the vehicle by virtue of a bona fide transfer thereof lies upon the registered owner and, unless and until that burden is discharged, he would continue to be liable to meet the liability arising out of an accident involving the vehicle. " ( 12 ) IN the present case, the appellant has failed to prove the transfer of ownership of the vehicle, instead the theory set up appears to be false and unbelievable. So, the appellant has failed to prove cessation of his ownership and the registered owner no doubt has rightly been held to be liable for payment of compensation. " ( 12 ) IN the present case, the appellant has failed to prove the transfer of ownership of the vehicle, instead the theory set up appears to be false and unbelievable. So, the appellant has failed to prove cessation of his ownership and the registered owner no doubt has rightly been held to be liable for payment of compensation. 'no doubt, appellant has to pass his burden has challenged title finding of Court discharging the Insurance Company from the burden of liability and as mentioned earlier, the submission is that the burden was on the Insurance Company to prove that there has been breach of condition of the licence by someone having no driving licence being allowed to drive that vehicle which the company has failed to discharge and the further submission has been that the finding which has been recorded in favour of the Compamy that it has shown or proved that Rajagopal was having no licence is based on no evidence or inadmissible evidence. As I have mentioned earlier, these contentions have been hotly contested by Sri. Raju. As regards burden to prove the necessary ingredients under Section 96 (2) (b) to be exempted from the liability and to claim the benefits under Section 96 (2), the necessary facts after having been pleaded by the Co. that burden lies on Insurance Company. When I so observe, I find support from the view expressed by their Lordships of the Supreme Court in the case of Narchinva V. Kamat v. Alfredo Antonio Doe Martins, AIR 1985 SC 1281 , in paragraph-14, at page 1284:the burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R. T. A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying that that test who have it, if no evidence is led the obvious answer is the insurance company. Further the R. T. A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying that that test who have it, if no evidence is led the obvious answer is the insurance company. To sum up the insurance company failed to prove that there was a breach of the term of the contract of insuranee as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insuranee remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance. " ( 13 ) SIMILAR is the view expressed by the Supreme Court in Alr l989 SC 2002,that is their Lordships in Shri Kashiram Yadav v. Oriental Fire and Gen. Insurance Company, and held and laid down that : "it must be established by Insurance Company that the breach was on the part of insured. " In the case of Bishan Devi v. Sirbaksh Singh, AIR l979 SC 1862, His Lordship expressed the view :"under Section 96 (2b) (ii), the Insurance Company can defend the claim for compensation. . . . . . . . . . . . . . . Apart from making the averment in the statement the insurer did not take any steps to establish that the vehicle was driven by a person, who was not properly licensed. . . . . . . . It is the duty of the insurer to have substantiated the plea" These cases prove, by laying down the defence which is taken on the ground of plea of terms of contract of insurance on any such ground as that the vehicle was allowed to be driven by a person having no driving licence burden did lay on Insurance Company to establish its defence plea. That in another case of United India Fire and General Insurance Co. Ltd. v. Kum. Nagarathna in Miscellaneous First Appeal No. 134 of 1980, decided on 29-10-1980, by Division Bench of this Court consisting of Hon'ble Mr. Justice G. N. Sabhahit and Mr. That in another case of United India Fire and General Insurance Co. Ltd. v. Kum. Nagarathna in Miscellaneous First Appeal No. 134 of 1980, decided on 29-10-1980, by Division Bench of this Court consisting of Hon'ble Mr. Justice G. N. Sabhahit and Mr. Justice D. R. V. Rao, this Court observed as follows :"apart from this, the certified copy of the plea in the Criminal Court produced at Ext. R. 3, there is nothing also produced by the Insurance Company to show that the driver on that day had no driving licence. As pointed out in the above cited Andhra Pradesh decision, it was for the Insurance Company to summon the driver. That the driver had not stepped into the box cannot in any way prejudice the claim of the petitioner who has suffered the injuries. The Company has not taken any steps to summon the driver to come with the licence. The Insurance Company could have again summoned the R. T. O. to produce the relevant licence, if any, or at any rate, produced the certified copy of the licence from the R. T. O. 's Office, or an endorsement from the R. T. O. that the driver had no licence. This, we observe because, the learned counsel for the appellant submitted that the burden is of a negative nature. We are only pointing out the various ways by which the Insurance Company could prove that the driver had no licence on the date of the accident. "that after having referred to the Madhya Pradesh's case, where it had been laid down that the burden of proof is on the driver to produce the licence before the Court and not on the Insurance Company and as such no liability can be fastened on the the Insurance Company, the Division Bench observed that :"with great respect to their Lordships of the Madhya Pradesh, we are unable to agree with the view. The preponderance of authority of different High Courts is in favour of the proposition that the burden is on the Insurance Company to prove any breach in the policy in order to get an exemption from liability and their Lordships made reference to the decision in the case of Bishan Devi v. Sirbaksh Singh, AIR 1979 SC 1862 . The preponderance of authority of different High Courts is in favour of the proposition that the burden is on the Insurance Company to prove any breach in the policy in order to get an exemption from liability and their Lordships made reference to the decision in the case of Bishan Devi v. Sirbaksh Singh, AIR 1979 SC 1862 . " ( 14 ) SO far as the burden of proof is concerned in my opinion definitely, it did lie on the Insurance Company to prove the factors in order to get exemption under Section 96 (2) of the Old Act or under Section 149 (2) (b) of the Act of 1988, where the defence case is that vehicle was driven by a person having no licence and the rider was having no driving licence and therefore, there was breach of contract, the Insurance Company had to prove it that the person who was driving, had no licence. How it has to be proved, it has been pointed out by the Division Bench of this Court as well as by the Supreme Court in the case of Narchinva V. Kamat v. Alfredo Antonio Doe Martins, AIR 1985 SC 1281 , as above apart from furnishing other evidence. Nothing of that nature has been done in the present case by the Insurance Company. It has neither summoned the rider as a witness to come and appear in the witness box, and to produce the licence, if he has any has to produce it nor it has summoned anything from the R. T. Os. Office of the District concerned nor has obtained any endorsement from the R. T. Os. and produced. No such effort has been made. Reliance has been placed on Ex. R. 6, along with Exs. P3 and P4, and it has been asserted that there is admission of Rajagopal that he did not have the driving licence. Reliance has been sought to be placed on the deposition of R. W. 3 - B. M. Lingappa, the Sub-Inspector of Police. As regards the statement of Lingappa, is not worth of any reliance. In view of what he has stated in the cross-examination, I quote the portion of his statement in his examination-in-chief and in cross-examination, that is of R. W. 3, who states that:"one T. G. Rajagopal was rider of the scooter, at the time of accident. As regards the statement of Lingappa, is not worth of any reliance. In view of what he has stated in the cross-examination, I quote the portion of his statement in his examination-in-chief and in cross-examination, that is of R. W. 3, who states that:"one T. G. Rajagopal was rider of the scooter, at the time of accident. I enquired about holding of D. L. by the first respondent. I came to know that he was not holding proper D. L. "no document has heen produced to prove as to from whom he made enquiries and whose statement was recorded and if, that statement was recorded, why that statement was not filed. In the cross-examination, R. W. 3 states that: "i have served notice on the 1st respondent to produce D. L. Accordingly, he has replied the notice under Section 88 of the M. V. Act, I dont have copy of the notice issued by me under Section 88 of the M. V. Act. I am producing only the carbon copy of the reply. " This carbon copy which has been produced is not proved, as that was not admissible. Apart from that no copy of the notice has been produced which he has asserted to have been issued by him and he states that he did not have the copy of the notice with him. When he had made the statement, he should have produced or summoned the document. In these circumstances, the statement of R. W. 3, is not reliable, as he has stated that he made the oral enquiries, but did not make a note of even the statement of Ramachandra Rao and Venkatesh Murthy. ( 15 ) ANYWAY, the statement of R. W. 3, does not inspire any confidence. It is no doubt well settled principle of law, the admission of a person is the best evidence on which his opposite party can rely, unless withdrawn successfully or shown to be wrong. It is also well settled that a statement to be read as admission, must be the clear, specific and unambiguous and in the own words of person making it and must be proved to be so. It is not an inference drawn by any body which should be taken as admission. It is also well settled that a statement to be read as admission, must be the clear, specific and unambiguous and in the own words of person making it and must be proved to be so. It is not an inference drawn by any body which should be taken as admission. Admission to be worth being admissible, considered and relied, should be firstly the clearcut and accurate specific statement of that very person in his own words. That should be placed before the Court and then that statement has to be produced and to be proved to be of that person who is alleged to have made that statement. The Court's order referring to the alleged admission is not sufficient proof of admission. In the case of Indra Singh v. Income-tax Commissioner, AIR 1943 Patna 169, a Divisional Bench of Patna Court High Court has been pleased to hold and observed: "unfortunately the exact statement made by Sardar Indra Singh has not been produced on behalf of Income-tax Department. It has been held in a number of cases that recitals in a Judgment are no evidence whatsoever to prove the admission made by a party or a witness unless the whole of statement is rectified therein. " Whereas, the Privy Council in the case of Ram Prakash v. Anand Prasad, AIR 1916 PC 256 : 43 Ind App 73 (P. C) at page 91 observed : "the note of admission made to Magistrate in Criminal case was rightly rejected as not being evidence of fact recorded therein. " Similar has been the view expressed by the Lahore High Court in 'molar v. Ramparshad, AIR 1927 Lah 377. ( 16 ) IN the present case, the charge-sheet is nothing but the document prepared by the police authorities. It is not the statement of Rajagopal in his own words. The order sheet Ex. P. 4 also not contain the admission in the own words of Rajagopal. It is the inference of the Court that he admitted guilt, might be guilt of having driven causing of accident, resulting and rash manner and causing of accident, resulting in injury to the claimant, it cannot be said that this means, that accused pleads guilty amounts to admission of the fact that he had no licence. So, the documents Exs. It is the inference of the Court that he admitted guilt, might be guilt of having driven causing of accident, resulting and rash manner and causing of accident, resulting in injury to the claimant, it cannot be said that this means, that accused pleads guilty amounts to admission of the fact that he had no licence. So, the documents Exs. P. 3, R. 4 and R. 6, cannot be termed as admissible pieces of admission of Rajagopal, admitting the fact alleged by Insurance Company that he had no licence. As such in my opinion, the Tribunal erred in considering these documents as admission of Rajagopal proving the breach of term of contract on the part of the owner that he allowed it to be driven by person having no licence. Once this fact is not established that vehicle was being allowed to be driven by a person having no driving licence, the Insurance Company in my opinion, has failed to discharge the burden under the contract of insurance and its liability under Section 96 (1) of the Act, and the finding in this regard recorded by the Tribunal is wrong and incorrect. The learned Council for the defence tried to place reliance on the decision of the Supreme Court in the case of Kashiram Yadav v. Oriental Fire and Gen. Insurance Co. , AIR 1989 SC 2002 , the observations in Paragraph 7. I may quote these observations which are as under:"but in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured 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 has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a licensed driver, Gaya Prasad (P. W. 2 ). This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With this distinguishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. Case AIR 1987 SC 1184 could be called to aid the appellants. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. With this distinguishing features in the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Ltd. Case AIR 1987 SC 1184 could be called to aid the appellants. " ( 17 ) THE above observations clearly reveal that their Lordships distinguished Kashiram's case from Skandia's insurance case. Secondly, the observations of that case that is Skandia's case really shows that the defence pleads that the vehicle had been transferred to third party or sold to third party was not proved. Whereas, in the present case, the defence plea that it was transferred to Venkatesh Murthy, was held to be false and based on concocted documents. When the defence or statement proved to be false that the vehicles was transferred to Venkatesh Murthy, the said defence could not furnish in the present case any reliable evidence in support of Insurance Company's case, that Rajagopal had no driving licence. Really, the other circumstances in the case Kashiram, as further found was that the positive defence taken that at the time of accident the vehicle was driven at the relevant time by Gaya Prasad was a licensed driver found to be false and no other material was there, to indicate that vehicle was given to the licensed driver, so the Supreme Court held burden may be taken to have been discharged by circumstantial evidence. Owner himself took that plea, so it may be taken to have, discharged it by the owner of the vehicle himself. Here the plea was only, about transfer having been made to Venkatesh. No specific plea was taken by the owner regarding Rajagopal who was driving the vehicle. Plea in the defence was taken by Insurance Company with respect of that Rajagopal was having no driving license, so the burden did lie on the Insurance Company to prove it. Here the plea was only, about transfer having been made to Venkatesh. No specific plea was taken by the owner regarding Rajagopal who was driving the vehicle. Plea in the defence was taken by Insurance Company with respect of that Rajagopal was having no driving license, so the burden did lie on the Insurance Company to prove it. It has not made any effort to summon either the driver Rajagopal nor did it make any effort to summon any evidence from the R. T. O. 's Office nor any other evidence produced by it and even if the owner takes a false plea on such technical plea, the claimant injured or heir of deceased cannot be deprived of the benefits of Vehicle being insured and benefits of beneficial provision of Section 94 and 95 (1) of the Act or similar provision of Act of 1988. The burden has to be strictly looked into from the point of view of the injured person. Should injured, person be deprived of his rights to proceed against the Insurance Company when it has done nothing? In my opinion, the award is to be modified only to this extent that all the three respondents in claim petition, i. e. , owner of vehicle, driver of vehicle and Insurance Company have to be made liable jointly and severally to pay the compensation awarded to the minor injured. Thus, Insurance Company is also held to be liable to pay amount of compensation awarded and it can be realized from all defendants (respondents) in claim petition. The appeal is thus partly allowed as mentioned above. It is hereby held and directed that the award of the Tribunal passed or delivered by the Tribunal shall be binding on all the respondents in claim petition and the money thereunder shall be payable jointly and severally by respondents 1 to 3, in the claim petition, that is the amount thereunder shall be payable to claimant respondent No. 1, by the appellant as well as by respondents 2 and 3. With this modification in award, the award given by Tribunal is affirmed. The appeal is thus finally disposed of. Appeal party allowed. --- *** --- .