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Smt. Lagana Devi and ors. Vs. Lila Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 58 of 1981
Judge
Reported in[1988]64CompCas814(Raj); 1985WLN(UC)310
ActsMotor Vehicles Act, 1939 - Sections 96 and 96(2)
AppellantSmt. Lagana Devi and ors.
RespondentLila Ram and ors.
Appellant Advocate Rajendra Mehta, Adv.
Respondent Advocate P.K. Bhansali, Adv.
DispositionAppeal allowed
Cases ReferredIn Narcinva V. Kamat v. Alfredo Antonio Doe Martino
Excerpt:
.....of insurance company--burden of proof--insurance company to prove that driver had no valid licence--insurance company not raising proper defence--held, it is liable to satisfy award;the burden of proof lies on the insurance company and it is for the insurance company to plead and prove that the driver did not hold a valid driving licence and that in order to escape the liability, the insurance company is to plead the defences which are available to it by virtue of section 96 of the motor vehicles act.;the insurance company has failed to take proper defence itself to satisfy the award.;the award of the claims tribunal is modified, directing the national insurance company to satisfy the award.;appeal allowed - - 10 of the claims petition have specifically stated that the..........the point that the insurance company is not liable to pay compensation because the driver had no valid licence.6. section 96 of the motor vehicles act, 1939, lays down the duty of the insurer to satisfy the judgment against the person insured in respect of third party risk. clause (b) of sub-section (2) of section 96 also provides that if there is a breach of the specified conditions of the policy, that can be a valid defence in an action against the insurer for a claim for compensation. one of the conditions which is generally incorporated in the policy is that the vehicle insured should not be driven by a person who is not duly licensed.7. in view of section 96(2) of the motor vehicles act, a defence is available to the insurance company and in case the insurance company wants to.....
Judgment:

P.C. Jain, J.

1. This is an appeal under Section 110D of the Motor Vehicles Act, 1939, against the judgment and award dated February 5, 1981, passed by the Motor Accidents Claims Tribunal, Bikaner, in Case No. 7 of 1978 dismissing the claim of the appellants against respondent No. 2, National Insurance Company, and decreeing a claim of the appellant to the extent of Rs, 42,300 against respondents Nos. 1 and 3.

2. The facts of the case are that on April 17, 1976, an accident took place causing the death of Shri Raj Dev Singh. The accident was caused by Lila Ram, who was the driver of tractor RJK 651/T. This tractor was owned by Ghisa Ram. In the accident, Raj Dev Singh died on April 18, 1976, in the hospital. The claimants are the widow of the deceased, Raj Dev Singh, and his minor children. The insurer of the tractor was National Insurance Company Ltd., which is respondent No. 2 in this case. In the case, there is no dispute about the accident and about the amount of compensation awarded to the petitioner. Neither the owner nor the driver or the insurance company has filed any appeal against the award. It is a fact that the Claims Tribunal dismissed the claim petition against respondent No. 2, the insurer of the vehicle.

3. Shri Rajendra Mehta, learned counsel for the appellant, has submitted that the Tribunal has committed a serious error of law in holding that the driver of the vehicle was not holding a driving licence. He has also submitted that the insurance company did not take the plea that the insurer has committed a breach of the condition, exhibit A-4, and, as such, it was not liable to pay compensation in view of the provisions contained in Sub-clause (2) of Sub-section (2)(b) of Section 96 of the Motor Vehicles Act.

4. Shri P.K. Bhansali, appearing on behalf of the insurance company, has seriously contested the submissions made by learned counsel for the appellant. He has submitted that the claimants themselves in para. No. 10 of the claims petition have specifically stated that the driver of the vehicle had no driving licence, and, in view of the admission of the petitioners themselves, the finding given by the Tribunal is perfectly justified and is not liable to be assailed.

5. It is true that in the case no issue was framed by the learned Tribunal on the point that the insurance company is not liable to pay compensation because the driver had no valid licence.

6. Section 96 of the Motor Vehicles Act, 1939, lays down the duty of the insurer to satisfy the judgment against the person insured in respect of third party risk. Clause (b) of Sub-section (2) of Section 96 also provides that if there is a breach of the specified conditions of the policy, that can be a valid defence in an action against the insurer for a claim for compensation. One of the conditions which is generally incorporated in the policy is that the vehicle insured should not be driven by a person who is not duly licensed.

7. In view of Section 96(2) of the Motor Vehicles Act, a defence is available to the insurance company and in case the insurance company wants to escape the liability, it may raise a ground that the insured had no valid licence. It is for the insurance company to plead and prove the defence specifically. An analytical study of the legal aspect would reveal that in the absence of any clear proof by the insurance company, it cannot be held that the driver of the vehicle at the relevant time was not a person holding a valid licence. In view of the aforesaid provisions of law, if the of the instant case are examined, the following relevant circumstances facts would appear. In the petition filed under Section 110A, in para. No. 10, the petitioner has stated as follows:

' This tractor was being driven by opposite party No. 1 at a high speed and in a rash and negligent manner. The driver of the tractor had no driving licence. The driver, it appears, was learning to drive from this new tractor. '

8. In reply to the claim petition, the insurer, non-applicant No. 2, National Insurance company, submitted the written statement. The reply to para. 10 is as follows :

' That para. No. 10 is denied as such. That after receiving the claimpetition under reply, the non-applicant made enquiries about the accidentand came to know that it was Raj Dev Singh, the deceased, who collidedwith the tractor from the backside. He was driving very fast and in arash manner and the accident took place because of his negligence or hiswilful conduct. '

9. In para No. 12 of the written statement, the insurer has pleaded asfollows:

'That para No. 12 is wrong. The facts which have come to the knowledge of the non-applicant are different from what has been stated in this para. It was not the negligence of the driver of the said vehicle, but it was the negligence of the deceased himself. It is true that the company is liable for the compensation because of the contract but the company is not liable if the deceased has himself invited the accident. In this particular case, the deceased, Rajdev Singh, himself collided with the tractor from the backside. So the applicants are not entitled for any compensation.'

10. The case thus disclosed very strange facts. The claimants have pleaded that the driver of the tractor had no valid licence, perhaps witha view to prove negligence in the manner of driving. On the contrary, the insurer has denied this fact. Why this fact was denied has not been made clear in the pleadings. The denial of averments in para No. 10 of the claims petition would lead one to believe that the insurer is contending as if the driver had a valid licence. Again, in para No. 12 of the written statement, the insurer has contended that it is not liable because the accident was not caused on account of any negligence on the part of the driver of the tractor but was in fact caused on accouut of negligence on the part of the deceased, Raj Dev Singh, himself, who collided with the tractor from the road. A careful perusal of the defence would reveal that no plea worth the name has been taken which is required to be taken in view of Section 96 of the Motor Vehicles Act.

11. As I have discussed above, Section 96 provides a defence to the insurance company and the defence is that the insured committed a breach of a specified condition of the policy and one of the conditions is that the insured vehicle should not be driven by a person who is not duly authorised. Unfortunately, the insurer in this case has not raised any such defence but indirectly or directly denied the contentions of the petitioners, which have been made hy the petitioner in para No. 10. The insurance company could have escaped the liability on account of any of the defences available to it under Section 96, Sub-section (2), of the Motor Vehicles Act provided such a case had been pleaded in the written statement and proved. It appears that there is not even a whisper of such defence in the written statement at all. It is only in a case where such a defence is pleaded that the insurer is permitted to lead evidence. It is for the insurance company to plead and to prove that the driver did not hold a valid driving licence.

12. In New India Assurance Co. Ltd. v. Sushila Devi Sharma [1981] ACJ 119, this court has observed as follows (at p. 122);

'That being so, these are the special defences for the insurance company only and normally it would be for the insurance company to prove those defences both in law and on facts.'

13. In Bhairon v. Nandram [1980] ACJ 519, this court on the question of onus of proof, observed as follows :

' In the instant case, company has expressly failed to prove that there was any condition by which vehicle was to be driven by a person holding a licence and if not, in case of breach, liability of the assurance company cannot be fastened.'

14. In Narcinva V. Kamat v. Alfredo Antonio Doe Martino [1985] 58 Comp Cas 383, their Lordships of the Supreme Court have observed as follows (at p. 387):

' It is the insurance company which complains that there has been a breach of one of the important terms of the contract of insurance as evidenced by the policy of insurance and that the second appellant who was shown to be driving the vehicle at the relevant time did not have a valid driving licence to drive the pick-up van.'

15. In that case, the insurance company contended that the driver did not hold a valid licence at the time of accident. There were other circumstances, viz., that the driver failed to produce the licence even when asked to do so in cross-examination. Under the circumstances, it was held that the onus was on the insurance company to prove that the driver had no driving licence to escape liability.

16. From the facts and the discussion of law stated above, it is clear that the burden of proof lies on the insurance company and it is for the insurance company to plead and prove that the driver did not hold a valid driving licence and that in order to escape the liability, the insurance company is to plead the defences which are available to it by virtue of Section 96 of the Motor Vehicles Act. In this particular case, the insurance company had completely failed to raise any objection in the pleading in terms of Section 96 of the Motor Vehicles Act. The question whether the driver who caused the accident held a valid licence, becomes relevant when the insurance company comes with a case for seeking the benefit of the exception clauses of Clause (b) of Section 96(2). It was for the insurance company to draw the attention of the Tribunal through proper pleading in this regard and take an appropriate step for getting an issue framed. The insurance company having failed to do so cannot escape from the liability which is fastened under the provisions of the Motor Vehicles Act. The finding of the learned Tribunal is simply based on the fact that the claimants thus have pleaded that the driver of the truck was not in possession of a valid licence. This admission could have been sufficient to throw out the case of the claimants for imposing any liability on the insurance company. Unfortunately, the insurer itself denied this allegation and did not raise a defence which is warranted to be raised in view of Section 96(2)(b) of the Motor Vehicles Act. It is also true that the claimants labouring under a misconception of fact and law, themselves have tried to prove that the driver had no licence. There is evidence of P.W. 5, Harish Chand, on the record but admission of Harish Chand in this regard is merely hearsay. One of the claimants who has been examined is Smt. Lagna Devi, widow of the deceased, who has not stated anything in her examination or cross-examination. Statement of P.W. 3 is only to the effect that the driver of the truck at the time of accident when interrogated, did not produce any licence. This too does not improve the position. There is the statement of Laxman Singh, N.P.W. 1, on behalf of insurance company. In the cross-examination, he states that Lila Ram had no driving licence but in the cross-examination he says that his statement is based on the fact that on being demanded, Lila Ram failed to produce the licence. Whatever may be the evidence produced by either of the parties, in view of the absence of the specific plea by the insurance company, I am afraid that the evidence cannot be appreciated as the principle is well settled that no amount of evidence can be looked into for which there are no proper pleadings.

17. In view of the discussions made above, I am of the opinion that the findings of the Tribunal that the insurance company is not liable is not correct, as the insurance company has failed to take proper defence itself to satisfy the award.

18. Accordingly, the appeal of the appellant is allowed. The award of the Claims Tribunal is modified, directing the National Insurance Company to satisfy the award. I confirm the liability of the owner and the driver. The result is that the driver, owner and the insurer shall be jointly and severally liable to satisfy the award to the tune of Rs. 42,000 which shall be payable with interest at the rate of 4 per cent. per annum with effect from September 23, 1976. Parties shall bear their own costs.


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