P.D. Mulye, J.
1. This appeal filed by the National Insurance Co. Ltd. under Section 110-D of the Motor Vehicles Act is directed against the award dated 24-11-77 passed by the Second Addl. Member, Motor Accident Claims Tribunal, Indore, in claim case No. 29 of 76 whereby he has awarded a total compensation of Rs. 7650/- in favour of claimant-respondent No. 1 Bhagirath and against the .appellant as also respondents Nos. 2 and 3, the owner and driver of the truck number MPE 344, though the claimant had put up a claim for Rs. 22,300/- for compensation.
2. Facts giving rise to this appeal may be stated; in brief, thus: on 17-10-1975, at about 8 a.m. the claimant respondent No. 1 Bhagirath was going on foot from his village Dakacha to Manglia by the left side of the road when truck Number MPE-344 driven by the driver respondent No. 3 Jamnalal came from behind without blowing any horn at a high and excessive speed in a rash and negligent manner and dashed against the claimant on account of which he was severely injured for which he was treated in the M.Y. Hospital where he had to remain till 1-11-75. Admittedly the said truck was owned by respondent No. 2 Suchendranath and was insured with the appellant Insurance Company.
3. The claimant claimed compensation mainly on the ground that as a result of the said accident there was fracture in his right leg and right hand, that his right eye was also injured on account of which his eyesight has been affected; that there was fracture of his ribs also, that at the time of the accident he was 50 years old his principal source of income was agriculture (sic) which on an average was Rs. 8000/- per year.
4. Before the learned Member the truck owner and the truck driver did not file any written, statement and they remained ex parte It is only the appellant who filed the written statement in whichwhile denying the accident it was contended that the truck driver did not have any valid driving licence at the time of the accident, nor was he an employee of the truck owner nor he was driving the truck with the permission of the truck owner.
5. The learned Member of the Tribunal on evidence found that the accident occurred on account of the rash and negligent driving of the truck driver as a result of which the claimant received serious injuries resulting in fractures also. He also found that on account of the said accident the claimant has been disabled to some extent which has diminished his capacity to carry on the agricultural operations as before. Thus, relying on the medical evidence as also the other evidence regarding the income of the claimant and after assessing the loss the learned Member came to the conclusion that a sum of Rs. 7650/-would be a just, proper and reasonable compensation. Being aggrieved the Insurance Company has come up in appeal.
6. As the defences to the Insurance Company are limited under Section 96 of the Motor Vehicles Act, the only point urged on behalf of the Insurance Company in this appeal was that the appellant has discharged its burden to prove that the truck driver Jamnalal did not have a valid driving license at the time of the accident as per the terms and conditions of the Insurance policy Ex- D-2 according to which the Insurance Company cannot be held liable. The learned counsel for the appellant did not dispute this fact that as held in AIR 1979 SC 1862 (Bishan Devi v. Sirhaksh Singh). the burden lies upon the Insurance Company to establish that the person driving the vehicle was not properly licensed. However, he contended that after the said accident the owner of the truck Suchendranath did not intimate the Insurance Company about the same. He further contended that the truck owner as also the truck driver after service of notice chose not to file any written statement and allowed the case to proceed ex parte against them. He therefore, contended that in these circumstances the courses open to the appellant to discharge his burden was to summon the owner of the vehicle to bring the licence of the driver who was driving the vehicle at the time of the accident and also to call the record from the office of the Regional Transport Officer to prove whether the said truck driver had been issued any license by the R.T.O. Office. He, there-fore, submitted that though the truck owner .Suchendranath was ex parte, the appellant had paid P.F. for the said truck owner and he was summoned to bring the driving licence of the driver Jamnalal who was resident of house No. 34/6, Bardeshi-pura, Indore.
7. The learned counsel for the appellant further submitted that the said truck owner Suchendra Nath who in pursuance of this summons was examined has deposed that he had no knowledge whether the said driver Jamnalal had a driving license or not, that he had not brought with him the driving licence of Jamnalal; that the said driver was employed by him temporarily; that he never asked the said driver as to whether he had ,a driving licence or not; that as his usual drvier was indisposed it is for that reason that at the instance of his driver he had temporarily employed Jamnalal to drive the truck. The learned counsel, therefore, submitted that from the evidence of this witness it is clear that the driver Jamnalal must not be having any driving licence at the time of the accident.
8. The learned counsel for the appellant further contended that he had not only summoned the truck owner to produce the driving licence of the said driver but he had also summoned the record of the R.T.O. Indore as the said driver was a resident of Indore. He, therefore, submitted that accordingly A.W. 3 Pandulare Pathak of the office of the R.T.O. Indore who had received the summons Ex. D-3 has deposed that he is not in a position to say anything whether any licence was issued by the R.T.O. Indore unless and until the number of the driving licence and date is not disclosed. In cross-examination he has further admitted that even a resident of Indore can obtain a driving licence from Bhopal or Ujjain where there are offices of the R.T.O.
9. The learned counsel for the appellant also contended that he had also summoned the driver Jamnalal, though he was ex parte, to bring his driving licence, but his summons was received unserved with the remark that he was out of station having gone out on a truck as its driver. this learned counsel for the appellant, therefore, contended that he had made all reasonable efforts in support of his case, but as the truck owner himself was not knowing the fact whether the said truck driver had any driving licence or not it has to bepresumed that the said driver did not have a valid driving licence. Besides, despite efforts he could not get any record produced from the R.T.O. Indore and even though the driver was summoned with the licence he too could not be served He, therefore, submitted that thus he has discharged his burden and in support of this submission he placed reliance on the decisions reported in 1981 ACJ 115 (Mad), (N. Palaniswamy v. Ramaswamy and 1982 ACJ 237 : (AIR 1981 Kant 169) United India Fire & Genl. Ins. Co. Ltd., Bangalore v. Nagarathna).
10. At the hearing of this appeal none appeared on behalf of the truck owner as ,also the truck driver though SPC was issued to them. However, Shri Rajpal appeared on behalf of the claimant-respondent who contended that though a witness from the Insurance Company D.W. 2 P.P. Bhandari has been examined to produce the copy of the Insurance Policy Ex-D-2, he has not said a word that the said driver did not hold a valid licence. He also contended that as admittedly the burden lay upon the Insurance Company to prove that the said truck driver did not have a valid driving licence, the same has not been discharged satisfactorily and convincingly.
11. After hearing the learned counsel for the parties and after going through the record of the case I find that considering the facts and circumstances, the appellant has tried to discharge its burden to prove that the said driver Jamnalal did not hold a valid driving licence when the accident occurred. It cannot be lost sight of the fact that both the truck owner is also the truck driver remained ex parte, but even then the appellant summoned the owner of the truck as also the driver to bring with them the original driving licence. But as stated above the truck owner claimed complete ignorance as he was not in a position to say whether the said truck driver Jamnalal, who was temporarily appointed in the absence of his regular driver, had a driving licence or not. In fact he has gone to the extent of saying that he did not even enquire from him as to whether he was duly licensed to drive the vehicle. The appellant also made efforts to summon the said truck driver himself, but he too could not be served. That apart, he also summoned the record of the R.T.O. Indore. It is no doubt true that a person living inIndore could obtain a driving license not necessarily from Indore but from other R.T.O. offices as well. But in the present case the appellant had made efforts from the R.T.O. Office Indore. Besides it is also apparent that the truck owner did not inform the Insurance Company about the happening of the said accident. From all these circumstances I find that in the present case the appellant Insurance Company did make all reasonable efforts to discharge that burden and they have thus succeeded in their efforts to a considerable extent.
12. In the result this appeal filed by the Insurance Company succeeds and is allowed. The award passed against the Insurance Company is set aside though it is maintained against respondent No. 2 Such endranath and respondent No. 3 Jamnalal. However, parties are directed to bear their respective costs of this appeal.