K.N. Singh, J.
1. These are two first Appeals from order against the award of the Motor Accidents Claims Tribunal, dated 28-8-1975, which involve common questions of law and facts. The two appeals are therefore disposed of by a common order,
2. On 3-11-1969, at about 10 A. KVinod Kumar aged about 11 years, astudent of class IX, and Pramod Kumaraged about 13 years, two real brothers,were going on a bicycle. Vinod Kumarwas driving the cycle while PramodKumar was sitting on the carrier. Whilethe two boys were proceeding from thecrossing of Beli Road towards the districtcivil courts a car coming from the opposite direction knocked down the cycleas a result of which the two boys gotserious injuries and the cycle got entangled with the car. Pramod Kumarwho was pushed to hospital died on7-11-1969. Vinod Kumar receivedinjuries but he survived. SriT. Ramabhadran, I. C. S. a Judge of theHigh Court, was registered owner of thecar U. P. R. 7244 which was insuredwith the General Insurance Companyand was being driven by Abdul Ghani,a peon of the High Court.
3. Two Claim petitions under Section 110-A of the Motor Vehicles Act,1939, were filed before the Motor Accidents Claims Tribunal, Allahabad, oneby Yogendra Nath Verma, father of thedeceased Pramod Kumar, claiming asum of Rs. 21,000/- as compensationfrom the owner and insurer of the vehicle. The other claim petition was filedby Vinod Kumar, claiming a sum ofRs. (?),000 for the injuries received by him. The two claim petitions were numbered as claim petitions Nos. 2 and 3 of 1970. The claimants asserted that the car in question was being driven in a very rash and negligent manner. Earlier it dashed against a hand driven cart which was going on the left side of the road and thereafter it knocked down the two boys who were going towards the District Courts.
4. Justice Ramabhadran, the owner of the car, filed a written statement, wherein he pleaded that the car belonged to him and he used to drive the same himself, as he had never engaged any driver to drive his car. He further stated that he had gone to South India along with other members of his family on 16th October, 1969, and he had left his car in the garage of his bungalow and the garage was locked. The key of the garage was left with the Jamadar and two orderlies of the High Court who were on duty at the bungalow in his absence. They were directed to open the garage periodically and also to get the vehicle dusted but they were given clear instructions that the vehicle will not be taken out of the bungalow. Against these orders Abdul Ghani a temporary peon who was working as orderly at his bungalow, had taken away the car out of the bungalow and drove the same on the public road, as a result of which the accident took place. He denied his liability to pay any compensation. Abdul Ghani, although he was not arrayed as a party, but by mistake his name was mentioned in the column of owner of the vehicle, pleaded that he was attached as an orderly peon at the residence of Justice Ramabhadran. He had been directed to look after the bungalow and the car in the absence of the Judge. Justice Ramabhadran was to come back to Allahabad on 11th November, 1969. He checked the motor car and he found that the tyres were flat and the car was in bad shape. He took the car to the petrol pump where he got the tyres inflated and got the motor oil etc. checked. He alleged that the car was not being driven by him, instead he had taken the car by pushing it with the help of some other persons. The accident occurred at the time when the car was being pushed and it was not being driven by him.
5. Another written statement was filed on behalf of the insurance Company. In their written statement the Insurance Company asserted that Abdul Ghani without the knowledge and consent or authority of Justice Ramabhadran took out the car for his own purpose and met with the accident and as Abdul Ghani was not the servant of Justice Ramabhadran at no time there was any relationship of master and servant and Justice Ramabhadran was not vicariously liable to pay compensation to the claimants and consequently the Insurance company was not liable to indemnify the owner. In the written statement it was further stated that Abdul Ghani was not a licensed driver and was not entitled to drive the motor vehicle.
6. It is necessary to bear in mind that after filing the written statement neither the owner nor the insurer produced any evidence before the Tribunal. Abdul Ghani also did not contest the proceedings. However, the claimants produced evidence, documentary as well as oral, in support of their case. The Tribunal held that the owner and the insurer both were liable to pay damages to the claimants. The Tribunal further held that Yogendra Nath claimant was entitled to the sum of Rs. 21,000/-as compensation for the death of his son. The Tribunal further awarded a sum of Rs. 5000/- to Vinod Kumar as compensation for the injuries received by him. The Tribunal gave two separate awards on 28-8-1975. These two appeals have been filed by the Insurance Company against the two awards.
7. Sri B. C. Dey, learned counsel for the insurance Company, urged that Abdul Ghani did not have a valid licence for driving a vehicle and he drove the car without the permission of the owner, as such there is no vicarious responsibility of the owner, consequent-ly the owner is not liable to pay any compensation and the Insurance Company is not liable to indemnify. Sri Dey further urged that under the terms and conditions of the policy no person who is not duly licensed, was authorised to drive the vehicle. Since Abdul Ghani had no driving licence he was disqualified to drive the vehicle as a result of which there has been a breach of the conditions of the policy. Therefore under Section 96 (2) of the Motor Vehicles Act the appellant insurance company is not liable to pay any compensation.
8. Section 96 (2) (b) (ii) provides that no sum shall be payable by the insurer to satisfy the demand against the person insured in respect of the third party risk if there has been a breach of specified conditions of the policy, which may include a condition excluding driving by a named person or by any person who is not duly licensed or by any person who may be disqualified from holding a driving licence. In view of these statutory provisions it is apparent that if the owner permits driving of vehicle by a person who had no driving licence or who is disqualified to hold or obtain licence in breach of the specified condition of the policy, the insurer will not be liable to indemnify the owner. But before this provision can be invoked by the Insurance Company to escape its liability it is necessary for it to produce the policy before the Court and to prove that the term contained in the policy as contemplated by Section 96 (2) (b) (ii) of the Act was violated. Even if there was such a condition in the policy the insurer has to prove that the person driving the vehicle did not possess a licence Or that he was disqualified from obtaining or holding a driving licence. Unless these basic facts are established by positive evidence the plea of the Insurance Company cannot succeed. In the instant case, the original policy is not on the record before us. We are not aware as to whether the original policy was filed before the Tribunal but even if it was filed the same is not available to us as the original record of the two claim petitions was burnt on account of a devastating fire which took place in the civil courts at Allahabad as a result of which a large number of records were burnt. If the appellant wanted to produce any secondary evidence to prove the terms and conditions of the policy it could have done so easily before this Court but the appellant did not take any steps for the reconstruction of the record and it further did not take any steps to prove the terms and condi-ditions of the policy. We are, therefore, not in a position to proceed on the assumption that the policy issued in favour of the owner of the vehicle in question contained a condition as contemplated by Section 96 (2) (b) (ii). But even assuming that there was such a condition in the policy the appellant company failed to produce evidence before the Tribunal or before, this Court to prove that Abdul Ghani had no valid licence in his favour or that he was disqualified to hold or obtain a driving licence, placing reliance on the written statement of Justice Ramabhadran, learned counsel for the appellant urged that there was material on record to show that Abdul Ghani had no driving licence with him. It is true that in his written statement Justice Ramabhadran stated that Abdul Ghani had no driving licence, but the assertion was never proved by means of any evidence before the Tribunal. The averments contained in the written statement could not take the place of proof unless the evidence is produced by the owner or insurer. It is not possible to presume that Abdul Ghani had no licence or that he was disqualified from obtaining or holding any licence. We are therefore of the opinion that in view of the fact that the appellant failed to prove that Abdul Ghani had no driving licence or that he was disqualified from holding or obtaining licence the appellant's contention that it is not liable to indemnify the owner cannot be accepted,
9. Learned counsel for the appellant then urged that the owner of the the vehicle was not liable to pay any damages or compensation as Abdul Ghani was not authorised by the owner to drive the vehicle and the accident did not occur during the course of Abdul Ghani's employment. The law is now well settled that a master has vicarious liability for the acts of his servant acting in the course of his employment. Unless the act is done in the course of employment the servant's act does not make the employer liable. The act must either be a wrongful act authorised by the master Or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident but if the servant at the time of the accident is not acting within the course of his employment but is doing something for himself the master is not liable. These principles were laid down by the Supreme Court in Sitaram Motilal Kalal v. Santanu Prasad Jaishanker Bhatt (1966 ACT 89) : (AIR 1966 SC 1697), Hidayatullah, J. speaking for the majority held thus (at p. 1674) :--
'There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own business. The de facto driver was not the driver or the agent of the owner but-one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie the owner would not be liable in such circumstances.'
In Mukho Devi v. Syed Hasan Zahir (1972 ACJ 6.1) a learned Judge of Delhi High Court held that where the driver without the knowledge and permission of the owner, drives a vehicle, the owner was not liable to pay any compensation because the car was not being driven in the course of his employment. Vicarious liability of the master does not arise at a time when the driver was not engaged by the master. The act must be committed in the course of the master's business. Before the owner is absolved from his vicarious liability for his servant or agent it has to be proved that the car was not being driven for the owner's business or for the owner's purpose. If a servant in the course of his employment drives the car on the owner's business the owner is vicariously responsible to pay compensation. Before the owner can escape the liability he has to produce evidence before the court to prove that the driver was not acting in the course of his employment and that the vehicle was not being driven with his consent, for his business or for his purpose. It must be determined on the basis of the evidence produced in each case. If the owner does not appear or if he does not produce any evidence there will be a prima facie presumption that the vehicle was being driven on the master's business as held by the Supreme Court in Sitaram Motilal Kalal's case. In the instant case, Justice Ramabhadran after filing his written statement did not appear in the witness box nor he produced any other evidence to negative this presumption. On his own admission Justice Ramabhdran had authorised his servants and orderlies to look after the car and to keep the same dusted andas such there was an implied consent to the servants to get the necessary checking of the vehicle done and therefore when Abdul Ghani took the vehicle to the petrol pump for getting the tyres inflated and for checking the oils etc he was acting in the course of his employment and the vehicle was being used for the purpose of the owner. In the absence of any evidence it is not possible to negative the presumption that the vehicle was being driven by the servant of the owner with his consent and for his purpose. Neither the owner nor the appellant produced any evidence to prove the essential fact that Abdul Ghani was not acting in the course of his employment for the master's business and that he was not authorised to drive the vehicle. In the absence of any such evidence it is not possible to accept the contention raised on behalf of the appellant that the owner is not liable. We are therefore of the opinion that the owner was liable to pay compensation to the claimants and the insurer is liable to indemnify the owner for the sum awarded against the owner.
10. Promod Kumar deceased was a young boy of 13 years and he had a bright future which was cut short by the unfortunate accident. The Tribunal has awarded Rs. 21,000/- to his father Yogendra Nath. The Tribunal has awarded a sum of Rs. 5,000/- for the injuries received by Vinod Kumar. The appellant insurance company is not entitled to challenge the quantum of compensation as awarded by the Tribunal, There is no appeal before us on behalf of the owner. In the circumstances the amount awarded by the Tribunal cannot be interfered with by this Court in the present appeals.
11. In the result, we hold that the appellant is liable to pay damages awarded by the Claims Tribunal. The appellant company is liable to indemnify the owner. The award of the Claims Tribunal is upheld, and the liability of the appellant continues to pay the amount to the claimants. Both the appeals fail and are accordingly dismissed with costs.