1. The instant appeal has been filed by owner of Bus No. UP14-F-7339 against the judgment and award dated 28.02.2003 passed by the Motor Accident Claims Tribunal/District Judge, Meerut in M.A.C. No. 320 of 2002 by which a compensation of Rs. 90,000/- together with interest at the rate of 10 % per annum from the date of the award up to the date of its satisfaction, has been awarded to the claimant-respondent for the injuries suffered by him in an accident which took place on 25.02.2001 between a Matador No. UP 12-B-5143, in which the claimant was traveling, and Bus No. UP14-F-7339, which was owned by the appellant. The award has been passed against the owner of the Bus and the benefit of insurance has been denied to him
2. I have heard Sri Siddharth for the appellant, Sri Manish Kumar Nigam for the respondent No.2 (the insurer of Bus No. UP14-F-7339) and Sri Bhual Vishwakarma for the respondent No.3. No one appeared on behalf of the claimant-respondent.
3. The sole point that has been pressed before this court is with regards to denial of the benefit of insurance to the appellant despite the fact that the vehicle was duly insured with the respondent No.2 (the National Insurance Co. Ltd.). Sri Siddharth, learned counsel for the appellant, submitted that an insurance policy was filed by the appellant to show that the vehicle was duly insured. It was submitted that no evidence was led by the Insurance Company to prove that the vehicle in question was being driven contrary to the terms and conditions of the certificate of insurance, yet the Tribunal, by placing a wrong burden on the owner of the vehicle to prove that the vehicle was being driven by a duly licensed driver, has denied the benefit of insurance. Relying on a decision of the Apex Court in the case of Narchinva V. Kamat and another v. Alfredo Antonio Deo Martins and others : (1985) 2 SCC 574; it has been urged that if a breach of a term of a contract of insurance is pleaded by the Insurance Company, then the burden is on the Insurance Company to prove its breach. Relying on a decision of the Andhra Pradesh High Court in the case of United India Insurance Co. Ltd. v. Madiga Thappeta Ramakka and others : 1995 ACJ 358, it has been urged that mere non-production of driving licence or non-examination of the driver of the vehicle is not enough to deny an insurance claim of the insured because in such a case, an application ought to be moved by the Insurance Company to summon the driver and examine him and if no application is moved by the Insurance Company to summon the driver and examine him then it could be said that the burden to prove a statutory defence has not been discharged. Likewise, reliance has been placed on a decision of the Apex Court in the case of Poonam Devi and another v. Divisional Manager, New India Assurance Co. Ltd. And others : 2004 (2) T.A.C. 313 (SC) so as to contend that 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 or 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. Reliance was also placed on two Division Bench decisions of this Court in the case of Oriental Insurance Company Ltd. v. Munshi Ram and others : 2001 (3) T.A.C. 2 (All.) and Oriental Insurance Co. Ltd. v. Kamla Devi and others : 2003 (1) T.A.C. 462 (All.), which are also to the effect that the burden is on the insurance company to establish that the driver of the truck did not have a valid driving licence.
4. On the strength of the aforesaid decisions, it was urged that as no efforts were made by the insurance company either to summon the driver or the owner so as to establish that the driver held no valid driving licence, the burden cast on the insurance company to prove its statutory defence was not discharged and, as such, the Tribunal ought to have fastened liability on the Insurance Company and not on the appellant.
5. In response to the above submission, Sri Manish Kumar Nigam, learned counsel for the Insurance Company, submitted that in the instant case neither the driving licence was produced nor the name of the driver was given. In absence of name of the driver of the vehicle or a driving licence of the driver, the Insurance Company could not have led any evidence to prove a negative fact that the driver did not have a valid driving licence. It was urged that an application to summon the driver can only be given when the name of the driver is disclosed. Likewise, verification of a driving licence can only be made when a copy of the driving licence is produced. Sri Manish Kumar Nigam submitted that in all the decisions that have been relied on by the counsel for the appellant, either the identity of the driver or a copy of the driving licence was there on record and, therefore, the courts have held that burden was on the Insurance Company to prove that the driver had no valid driving licence either by producing evidence or by summoning the driver whose name was disclosed. Sri Manish Kumar Nigam placed reliance on a decision of the Division Bench of this Court in the case of National Insurance Co. Ltd. v. Brij Pal Singh and another : 2003 (3) T.A.C. 849 (All.) so as to contend that where neither the name of the driver nor the driving licence is brought on record, the burden of proving a negative fact cannot be placed on the Insurance Company. It was urged that whether a person holds a driving licence or not is within the special knowledge of that person, therefore, that person himself must come forward and lead evidence in that regard or else an adverse inference ought to be drawn against that very person by virtue of section 106 of the Evidence Act. Relying on the said decision, it was urged that whether a person holds a driving licence or not is within the special knowledge of that very person and if he does not bring the information on record, then an adverse inference ought to be drawn against him. It has been submitted that since neither the owner nor the Roadways Corporation, with whom the vehicle was engaged on a contract, had disclosed the name of the driver or had produced a copy of the driving licence, therefore, the Insurance Company could not have led any evidence to prove a negative fact. It has been urged that since the Insurance Company in its written statement had denied that the driver held a valid driving licence, the burden was on the owner or the Roadways Corporation to produce a copy of the driving licence or to lead some evidence in that regard. It was submitted that in absence of any such evidence or pleading having been led or taken by the owner/Corporation, the Insurance Company could not have been fastened with any liability and, therefore, the judgment and award of the Tribunal requires no interference.
6. Having considered the submissions of the learned counsel for the parties, before assessing the merit of the submissions, it would be useful to first examine the pleadings of the parties in that regard. A perusal of the lower court record reveals that neither in the claim petition nor in the written statements, which were separately filed by the three opposite parties to the claim petition, there is name of the driver of the Bus in question. Even the holding of a driving licence by the driver of the Bus is not mentioned, much less its number or details. It is interesting to note that the written statement of the Insurance Company as well as of the Roadways Corporation is dated 18.01.2002 whereas of the owner of the Bus is dated 31.01.2002, although from its front page it reveals that it was served on 25.01.2002. The front page of the written statement filed by the Insurance Company reveals that it was served on 18.01.2002. Order sheet reveals that all written statements were filed on 31.01.2002. In the written statement of the roadways corporation it has been stated that the driver was in the employment of the Bus Owner. Roadways Corporation has not disclosed the identity of the driver. The Insurance Company in its written statement specifically claimed, in paragraph 28 of the written statement, that the driver driving the Bus, at the time of the accident, did not hold a valid driving licence. It was stated therein that the owner of the Bus is put to strict proof to demonstrate by documentary evidence that the driver held a valid driving licence. Interestingly, the owner in his written statement, though claimed that Bus was insured but neither disclosed the name of the driver nor claimed that the driver driving the Bus at the time of the accident held a valid driving licence.
7. Section 149(2) of the Motor Vehicles Act provides for certain defences which an insurer can take to a claim. Sub-clause (ii) of clause (a) of sub-section (2) of section 149 of the said Act, provides that an insurer can defend a claim on a ground that the person who was driving the vehicle did not hold a valid driving licence. Sub-section (2) of section 149 provides that no sum shall be payable by an insurer under sub-section (1) in respect of any judgment and award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on the grounds mentioned therein. One of such grounds is that the driver does not hold a valid driving licence.
8. It is thus clear that the Insurance Company is entitled to take as a defence that the driver who was driving the vehicle concerned, at the time of the accident, did not hold a valid driving licence. Once this plea is taken by the Insurance Company, it is for the Insurer, who claims the benefit of indemnity, to disclose either by way of pleading or by way of document that the driver held a valid driving licence. Unless the details of the driver or the description of the driving licence is given or brought on record, the Insurance Company cannot establish a negative fact. Even assuming that the Insurance Company could apply to the Court to summon the person said to be driving, but for that his identity ought to be known. Therefore, if it is held that even without there being any evidence with regards to the name of the driver or his driving licence, the burden would be on the Insurance Company to prove that the driver did not hold a valid driving licence, it would render the statutory defence available to the Insurance Company unworkable. There is also another aspect to the matter which is that if the owner is absolved of his responsibility of even disclosing the identity of the driver or of his licence in response to a claim for compensation, there might be gross misuse of that which may even endanger public safety. Because it would enable the owners to let their vehicle be driven by persons not competent to drive.
9. The judgments that have been relied on by the learned counsel for the appellant are those where either the name of the driver was known or the driving licence was there on record. In that context, the courts have held that the burden was on the Insurance Company to prove that the driver did not hold a valid driving licence and such burden could be discharged either by summoning the driver concerned or by leading of evidence and if no evidence is led, then in such a situation, it could be said that the Insurance Company failed to discharge its burden and, as such, could not avoid a claim made against it on the contract of insurance.
10. Here, in the instant case, neither the name of the driver of the vehicle nor the driving licence was brought on record so as to enable the Insurance Company to prove a negative fact by either summoning the driver or by verification of the records. It is noteworthy that the learned counsel for the appellant could not show that the name of the driver was revealed from some collateral material on record. In such circumstances, I am in complete agreement with the view taken by a Division Bench of this Court in the case of National Insurance Co. Ltd. v. Brij Pal Singh and another (supra) that in absence of any material with regards to the name of the driver of the vehicle or his driving licence, the burden cannot be cast on the Insurance Company to prove a negative fact and, in such a case, if a plea is taken that the driver did not hold a valid driving licence, the owner cannot succeed in a claim of indemnity against the Insurance Company. Further, the fact of having a licence is especially within the knowledge of its holder, therefore, by virtue of section 106 of the Evidence Act the burden is on him to prove so. It is only when some details are given, then the burden may fall on the insurance company to prove otherwise.
11. In view of the above, I do not find any good reason to allow the owner's appeal and fasten liability on the Insurance Company. The appeal is, therefore, dismissed. There is no order as to costs.
Order Date :- 30.5.2014 Sunil Kr Tiwari