JUDGMENT B.S. Chauhan, J.
1. This First Appeal From Order has been filed by the insured (owner of the vehicle) against the Award dated 21.12.2005, passed by the Motor Accident Claims Tribunal (hereinafter called the Tribunal), wherein the Tribunal has awarded compensation to the claimants to the tune of Rs. 1,52,000.00. Under the Award the said amount is to be paid to the claimants by the respondent No. 3, the New India Assurance Company Limited (hereinafter called the insurer), but the insurer can recover the same from the insured as at the time of the accident the vehicle was being plied by a person not having a valid driving licence.
2. The facts and circumstances giving rise to this case are that on 28.7.1998 at 9.20 p.m. one Amar, aged about 5 years, was travelling in Jeep No. U.P. 63 A-1418 along with the family members. When the said vehicle reached near the village Semari, it met with an accident with another Jeep No. M.P. 17 A-3387 which was being driven rashly and negligently. Other passengers were seriously injured but the child Amar died on the spot. A criminal case was registered against the driver under 279/338/427/304A I.P.C. The post-mortem was conducted on the body of the deceased child Amar on 29.7.1998. His parents Shri Kant Tiwari and Smt Bhanu Tiwari, the respondent Nos. 1 and 2, filed Claim Petition No. 43 of 1999 before the Tribunal under the provisions of Sections 140/166 of Motor Vehicles Act, 1988 (hereinafter called the Act), claiming a sum of Rs. 3,25,000.00 as compensation. The Insurance Company as well as the present appellant-insurer contested the claim taking large number of pleas. It was admitted by the insurer that the vehicle had been insured with it, but it contended that it was not liable to pay any compensation, for the reason that the driver of the vehicle was not having any valid driving licence.
3. Several issues were framed by the Tribunal, including issue No. 2, as to whether vehicle was being driven by a person having a valid driving licence. The insurer and the insured led evidence on this issue. The Tribunal recorded the finding that it was being driven by the person having no valid licence. However, as the insurer was liable to pay the compensation first, it would be liable to make the payment but would be entitled to recover the same from the insured. The Tribunal awarded the compensation to the tune of Rs. 1,52,000.00. Hence this appeal.
4. Shri Ram Singh, learned Counsel for the appellant has raised the sole ground before us that it was the sole and exclusive responsibility of the insurer to prove that the vehicle was being driven by the person having no valid licence and the said onus/burden has not been discharged by it. Therefore, no recovery can be made from the insured. In support of his submissions a large number of judgments have been cited wherein it has been held that the onus to prove that the vehicle was being driven by the person having no valid licence lies upon the insured, e.g., Naranva v. Kamat and Anr. v. Alfredo Antonio Doe Martins and Ors. ; National Insurance Co. Ltd. v. Santro Devi and Ors. ; and Punam Devi and Anr. v. Divisional Manager, New India Assurance Co. Limited and Ors. .
5. We have considered the submissions made by the learned Counsel for the appellant and perused the record.
6. The issue involved herein is no more res Integra, as it has been considered time and again by the Apex Court. Purpose of making insurance of a vehicle, mandatory, i.e., a statutory requirement, is for the purpose that the claimants may get the compensation in time, otherwise, in case the amount is to be recovered from the owners of the vehicle, the procedure would be more cumbersome. While considering the provisions of Section 96 of the Motor Vehicles Act, 1939 (hereinafter called the old Act) which was analogous to Section 149 of the Act, the Hon'ble Supreme Court in Sohan Lal Passi v. P. Sesh Reddy and Ors. held that the whole concept of getting the vehicle insured is to provide an easy mode of getting the compensation by the claimants, otherwise in normal course they have to pursue their claim against the owner from one forum to the other, and ultimately, to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known, therefore, the insurer and the insured are made jointly and severally liable to pay the compensation to the claimants, and it is the duty of the insurer to satisfy judgments against persons insured in respect of 3rd party risks, and if the insurer satisfies that insured had violated the terms and conditions stipulated in the insurance policy, it would be entitled to make the recovery of that amount from the insured.
7. Keeping in mind the time in settling the claims in such matters the Hon'ble Apex Court in Bishan Devi and Ors. v. Sirbaksh Singh and Anr. observed that there was a dire need to legislate for minimum and adequate relief to the claimants in vehicular accidental cases so that they may get something immediately which may mitigate their hardships to certain extent. The Court observed as under:
It is for the legislature to make provisions for immediate and adequate relief to the defendants in motor accident cases. The legislature may consider making the liability to pay minimum compensation absolute as is provided for to the dependants of victims in rail and air accidents. When a person dies in a motor accident, the number of his dependants and the period of their dependency may be ascertained. The minimum compensation may be paid every month to the dependants according to their share for the period to which they are entitled.
8. Section 140 of the Act provides for liability without fault in certain cases. As per the said provision, in case of death or permanent disability of any person as a result of the accident, the owner of the vehicle shall be liable to make payment of some amount on the principle of "no fault liability" and for such claim, it is not required for the claimant to plead and establish the death or permanent disability, in respect of which the claim had been made, was due to any wrongful act, neglect or default of the owner of the vehicle.
9. The provision of Section 2(x) of the Act, which defines "Driving Licence" reads as under:
Driving Licence" means the licence issued by the Competent Authority under Chapter II, authorising the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class or description.
10. Rule 141 of the Central Motor Vehicles Rules, 1989 (for short, "the Rules, 1989") mandatorily requires and authorises the insurer to issue every holder of policy of insurance, a certificate of insurance in Form 51 in respect of each such vehicle. Clause (9) of said Form 51 reads as under:
Persons or class of persons entitled to drive stage carriage/ contract carriage/ private service vehicle:
...
Goods carriage;-
Any person, including insured:
provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence.
Provided also that the person holding an effective learner's licence may also drive the vehicle when not used for transport of goods at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989.
11. Rule 3 of the Rules, 1989 provides, in general, for non-application of the provisions of Section 3 of the Act for a person receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive. Section 3 of the Act completely prohibits any person to drive a vehicle on any public place unless he holds an effective driving licence. In fact, it is a general clarification as Sub-section (2) of Section 3 of the Act also provides for a similar provision stating that condition, subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle, shall be such as may be prescribed by the Central Government.
12. In New India Assurance Co. v. Mandar Madhav Tambe the Hon'ble Supreme Court held that in case at the time of accident the driver was not holding the effective driving licence, the insurer cannot be fastened with the liability and a driver holding learner's licence cannot be regarded as a person having effective driving licence and in case the insurance policy makes it clear that in the event of an accident the insurer will be liable provided the vehicle was driven by a person holding valid driving licence or a permanent driving licence other than a learner licence, it cannot be fastened with any liability to indemnify the owner.
13. In Kashiram Yadav and Anr. v. Oriental Fire & General Insurance Co. and Ors. , the Hon'ble Supreme Court held that when the insured himself entrusted the vehicle to a person who did not hold an effective licence, the insured could be said to have committed the breach of condition of policy and in case he is found guilty of committing such a breach, the Insurer can escape from the obligation to indemnify the insured.
14. While dealing with a similar issue in United India Insurance Co. v. Cyan Chand and Ors. , the Apex Court held as under:
Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the insurance company would get exonerated from its liability to meet the claim of the third party who might have suffered on account of vehicular accident caused by such unlicensed driver.
15. While deciding the said case, the Hon'ble Supreme Court distinguished the facts from the case in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan AIR 1987 SC 1184, wherein the vehicle had been entrusted by the insured to a person having effective driving licence. However, in transit, the driver stopped the vehicle and went to fetch some snacks from the opposite shop leaving the ignition key at the ignition box. The cleaner meddled with the vehicle and caused the accident. The question arose: whether the insured (owner) had committed the breach of the conditions incorporated in the Certificate of Insurance since the cleaner operated the vehicle on the fatal occasion without having driving licence. The Hon'ble Supreme Court expressed the view that it was only when the insured himself entrusted the vehicle to a person who did not hold a valid licence, he could be said to have committed the breach of condition of the policy and in case the vehicle has been entrusted by somebody else, the insurance company cannot escape from the obligation to indemnify the insured for the reason that when insured had done every thing within his power, in as much as he had engaged the licensed driver and had placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured was guilty of any breach.
16. The issue was re-considered at length by the Hon'ble Apex Court in National Insurance Co. Limited v. Swaran Singh and Ors. , wherein the Hon'ble Supreme Court examined the general terms of insurance policy and all statutory provisions of the Act and considered the earlier judgments given by the Hon'ble Supreme Court and came to the conclusion that if the vehicle has been allowed to be driven by a person having no valid licence, the insured is entitled to succeed in its defence and avoid liability. However, there may be a different matter where a disputed question of fact arises as to whether the driver had a valid licence or whether the owner of the vehicle had committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand at all e.g. a case where an accident took place owing to a mechanical fault or vis-major. The Court further summarised the law and the relevant part thereof reads as under.
(I) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time....
(II) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case...
(III). The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case....
(IV) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
17. Thus, it is evident from the aforesaid that the insurer can take a defence of violating the terms of insurance contract in case it is established that at the time of accident the driver was not having the valid licence.
18. A similar view has been reiterated by the Hon'ble Apex Court in New India Assurance Co. Limited v. Manjit Kaur and Ors. 2004 AIR SCW 704. The Hon'ble Apex Court re-examined the issue again in National Insurance Corporation Ltd. v. Kanti Devi and Ors. , wherein it followed the law laid down in Swaran Singh (supra) and held that in case at the time of accident the driver is found to be without having a valid licence, the insurer cannot be fastened with the liability of compensation. However, the insurers be asked to pay the compensation but it shall be entitled to recover the same from the insured. While deciding the said case, the Apex Court also reconsidered its earlier judgment in United India Insurance Co. Ltd. v. Nehru and Ors. .
19. The instant case requires to be considered in the light of the aforesaid settled legal propositions. The issue involved herein had been considered by the Tribunal at length. The appellant had taken the defence that he himself was plying the vehicle and in support of his case he submitted his own driving licence which had also been properly exhibited. The Court summoned the record of the licensing authority and came to the conclusion that the said licence was valid from 19.10.1993 to 18.10.1996. The accident occurred on 28.7.1998, and on that date the said licence was not valid.
20. Subsequently, appellant changed his defence and submitted that one Phool Chandra Tiwari, driver employed for running the jeep was driving the said vehicle at the time of accident and he filed his licence which had also been properly exhibited. The Tribunal after summoning the record from the licensing authority came to the conclusion that the said licence was valid from 20.7.1991 to 19.7.1994 and it had been further renewed w.e.f. 8.11.2004 and was valid upto 7.11.2007. As it has been renewed after six years of the date of accident, it was not valid on the date of accident, i.e., on 28.7.1998.
21. The Tribunal has further held that the insured had been totally irresponsible even to find out as to whether his driver Phool Chandra Tiwari had any valid driving licence though remained in his employment for decades altogether. The said Phool Chandra Tiwari driver was summoned by the Tribunal at the behest of the Insurance Company, but he did not turn up in spite of service. Thus, the Tribunal has recorded the finding that the vehicle was being driven without having valid driving licence.
22. The judgments cited by the learned Counsel for the appellant are quite distinguishable on facts and the ratio thereof is not appealable in the facts of this case.
23. The sole contention of the learned Counsel for the appellant has been that the onus was upon the insurer to prove the violation of the terms of the insurance contract, which he failed to discharge. We fail to understand as by what other means the insurer could discharge the burden of proof.
24. While examining the similar case the Hon'ble Supreme Court in Kashiram Yadav (supra) held as under:
But in the present case, the onus of the insurer has been discharged from the evidence of the insured himself. His insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to 3rd party. This has not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven by a 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 these distinguishing features for the present case, we do not think that the ratio of the decision in Skandia Insurance Co. Limited v. Kokilaben Chandravadan AIR 1987 SC 1184 could be called to aid the appellant.
25. In Kalwa Devadattam and Ors. v. Union of India and Ors. , the Apex Court has observed as under:
The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence, at all, is led on the question in dispute by either side; in such a contingency, the party on whom the onus lies to prove a certain fact, must fail. Wherever, however, evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, truth or otherwise of the case must always be adjudged on the evidence led by the parties.
(Emphasis added).
26. In view of the above, the matter is squarely covered so far as the onus of proof is concerned by the judgment of the Hon'ble Supreme Court in Kashiram Yadav (supra), as in the instant case, the appellant who took the defence that he himself was driving the vehicle and when it was found that he himself did not have the valid driving licence on the date of the accident, he changed his version and brought the story of the vehicle being driven by one Phool Chandra Tiwari, driver, who was also found not having valid driving licence. The onus of proof of the insurer stood discharged by the evidence led by the insured himself.
27. There is another aspect of the matter. The appellant was the best person to tell who was driving the vehicle on the date of accident and he was further supposed to lead evidence to prove that the person driving the vehicle was having a valid driving licence. He failed to do so, and so the Tribunal rightly drew adverse inference against him, in view of the provisions of Section 114 Illustration (g) of the Evidence Act.
28. In view of the above, we do not find any force in the appeal. It lacks merit and is accordingly dismissed.