K. M. Natarajan, J.
1. The second respondent Insurance Company, in O.P.No. 175 of 1980 on the file of the Motor Accident Claims Tribunal. Madras is theappellant herein. The facts which are necessary for the disposal of this appeal are briefly as follows :
The first respondent herein who is the owner of the mot or cycle TMC 4937 drove the said vehicle rashly and knocked down the cyclist, deceased Gandhi, on 12-3-1979 at about 4.30p.m. As a result of the injuries sustained by the said Gandhi, he dies later at the hospital on 7-5-1979. The widow and children of the deceased respondents 2 to 4 herein filed O.P. Xo. 175 of 1980 against the owner-cum-driver of the vehicle, the firsrt respondent herein, and the Insurance Company, the appellant. The contention of the appellant in the counter filed betore the Claims Tribunal was that the first respondent had no valid driving licence at the time of the accident and that he was prosecuted, convicted and sentenced and hence the appellant was not liable. The Claims Tribunal on the basis of the oral and documentary evidence adduced before him came to the conclusion that the first respondent drove the motor cycle TMC 4937 rashly and knocked down the deceased and as a result of the same, the deceased died and awarded compensation of Rs. 10,000/- against the first respondent, while dismissing the claim against the appellant holding that the first respondent violated the condition of the policy by not holding a permanent driving licence other than a learner's licence at the time of the accident. Aggrieved with the same, the claimants, respondents 2 to 4. herein filed C.M.A. No. 536 of 1982. The learned single Judge of this Court allowed the appeal and awarded compensation of Rs. 26,500/- with proportionate costs against the appellant herein. The appellant has challenged the said award passed by the learned single Judge in this letters patent appeal.
2. The learned Counsel for the appellant, Mr. A. R. Ramanathan submitted that the learned single Judge of this Court erred in awarding compensation against the appellant when the first respondent had no valid driving licence and he was convicted on the plea to the charge under Section 3 of the Motor Vehicles Act. It was submitted that the award of compensation is against the evidence of P.W. 1, the investigating officer, According to the learned Counsel, learner's licence is not a valid licence in view of the Bench decision of this Court in Ambujam v. Hindustan Ideal Insurance Co. : (1980)2MLJ570 : and even if the appellant was holding a learner's licence, the appellant. Insurance Company, is not liable in view of the said decision. Further, in view of the conviction of the first respondent under Section 3 of the Motor Vehicles Act, it is clearly established that the first respondent is not possessed of a valid licence at the time of the accident. As per the terms of the Insurance Policy, the first respondent should possess the permanent driving licence other than the learner's licence and in the absence of permanent driving licence, the Insurance Company cannot be held liable,
3. As regards the contention of the appellant that the first respondent had no valid driving licence and that he was prosecuted under Sec, 3 of the Motor Vehicles Act and as such, as per the terms of the Policy, he is not liable to pay any compensation, it is the uniform decision of various High Courts and the Supreme Court that the onus of proof in regard to breach of condition in the policy is on the insurer and not on the claimant or the owner of the vehicle. In Bishen Devi v. Sirbakash Singh, : 1SCR300 , it was observed :
'Under Sec. 96(2)(b)(ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed.
..... It is the duty of the insurer to have substantiated his plea.
In Indian Mutual Ins. Co, now merged in the United India Fire and General Ins. Co. Ltd, v. Vijaya Ramulu, 1978 Acc CJ 366 (AP) it was held that the onus is on the insurer to prove that the driver, who drove the vehicle at the time of the accident, did not possess a valid driving licence. It was further held that it was not enough for the insurer to have merely given notice to the owner to produce the driver for evidence. They ought to have approached the Road Transport Authority and proved on their own that the driver was not duly licensed, The insurers ought to have taken steps to examine the driver. Hence, for these reasons, the insurer could not be absolved of their liability, merely on the basis of their pleading that the driver was not duly licensed. In United India Fire and Gcnl. Ins. Co. Ltd. v. Surindasinh Gurasinh : AIR1981Guj237 , it was held:
'The onus is on the insurer to plead and prove that the driver who drove the vehicle at the time of the accident did not have a valid driving licence. The mere averment to that effect in the written statement, or a mere suggestion to a witness with regard to it in cross-examination, is not sufficient to discharge the burden on the insurer. Following the observation of the Supreme Court in 1979 ACJ 496 : ATR 1979 SC 1862 it was held the insurer had to discharge the burden satisfactorily to escape liability.'
In Narchinva V. Kamat v. A.A.D. Martins, : 3SCR951 , it was held:
'The insurance company asked the driver while cross-examining him, to produce the driving licence, but the driver failed to do so, It was held that the burden on the insurer could not be said to have been discharged by a mere question in cross-examination. The driver was under no obligation to furnish such information to enable the insurer to wriggle out of their liability. Further, the Road Transport Authority, which issues the driving licence, keeps a record of the licences issued and renewed by it. The insurer could have produced the evidence to substantiate their allegations. It was therefore held that, the insurer having failed to discharge their burden, their liability under the contract of insurance remained intact and unhampered. They were bound to satisfy the award.'
In the instant case, though the insurance company, the appellant herein, issued a notice to the first respondent to produce his driving licence, it was not produced. As rightly observed by the learned single Judge, it was not produced because it is established by the evidence of the investigating officer P.W. 1 seized the learner's licence of the first respondent during investigation and that he was having the same in his possession. When P.W. 1 was in the witness box. he was not asked to produce the licence. Further, no steps were taken to summon the records from the Regional Transport Officer who issued the licence to prove the fact that the first respondent was not having a valid licence at the time of the accident. In the instant case, much reliance was placed on the admission of the 1st respondent. R.W. 2. R.W. 2 has stated in the chief-examination that he was having the learner's licence at the time of the accident and that it is a comprehensive one. But in corss-examination. he has stated that he did not know the date on which the licence was obtained and also the period of licence. He has also stated that the licence was not in force at the time of the accident. He has further admitted that he was fined Rs. 50/- for driving the vehicle without a licence. In reexamination, he has stated that he has filed a revision against the said conviction. He would further state that he was a mechanic and that he was driving the motor cycle for five years. R.W. 1, the senior assistant attached to the office of the Insurance Company, appellant, would state that he does not know whether the first respondent was having a learner's licence at the time of the accident. P.W. 1 investigating officer, has stated in chief examination that the first respondent was having learner's licence and that the said licence was from 24-11-1978 to 22-7-1979. He would stale that it expired. But, it has to be noted that the accident was on 12-3-1979. If that period was taken into consideration, the learner's licence was in force. It is the evidence of R.W. 2 that the said licence was seized by police. The learned Counsel for the appellant relied on the above evidence and submitted that in view of the evidence of R.W. 2 that he was convicted for not possessing valid licence, the appellant, insurance company, is absolved from liability. It has been held in New India Assurance Co. Ltd. v. Deen Dayal, 1986 ACJ 251 (Raj): Abdul Zabbar v. Ram Swamp, 1985 ACJ 594 (Raj) : and New India Assurance Co. Ltd. v. Mandar Madhav Tambe, 1986 ACJ 874 (Bom) that the mere admission of a driver: who is a respondent ihat he had no licence cannot bind the claimants. It is for the insurer to lead positive evidence to discharge their burden. If they failed to do so, they cannot avoid their liability. In New India Assurance Co. Ltd. v. Subbu 1987 ACJ 108 (Mad) the insurer came up on appeal on the ground that the driver did not hold a valid driving licence to drive a medium goods vehicle, namely, a trailer-tractor since the driver held only a licence to drive a light motor vehicle. It was held that the mere admission of the driver in the witness box that he held a licence to drive only a light motor vehicle, was not sufficient. The Insurance Company was held as having failed to discharge its burden to prove that the driver did not have a valid driving licence, since the liability of the insurance company was to the claimants who were the victims of the accident and not to the driver. The driver having failed to produce the licence and the insurance company having failed to summon the available records, the possibility of the driver supporting the insurance company could not he ruled out. In the instant case, the learned Counsel for the appellant relied on the admission of the owner-cum-driver of the vehicle about his non-possessing a valid driving licence at the time of the accident. But, no steps have been taken either to summon the licence from the investigating officer or from the authorities concerned. As pointed out in the above decisions, any admission made by the non-claimants and the respondents is not binding on the claimants. The burden is on the Insurance Company to prove that the driver of the vehicle was not having valid licence and that there was breach of the condition of the policy and as such the insurance company was not liable. Even in respect of alleged conviction under Sec. 3 of the Motor Vehicles Act, in similar circumstances, a Bench of the Karnataka High Court in United India Fire and Genl. Insurance Co. Ltd.. Bangalore v. Nagarathna. 1982 ACJ 237 : : AIR1981Kant169 , held that apart from the certified copy of the plea of guilty recorded in the Criminal Court, nothing else is produced to show that the driver had no licence. As pointed out by the Andhra High Court in Indian Mutual Ins. Co. now merged in the United India Fire and General Ins. Co: Ltd. v. Vijaya Ramulu, 1978 ACJ 366 (AP)it was for the Insurance Company to summon the driver. The Insurance Company should have summoned the Road transport Authority to produce the relevant licence, if any or at any rate ought to have obtained the endorsement of the Road Transport Authority that the driver had no licence and in the absence of any record, there is no case (to) exonerate the Insurance Company on the basis of the conviction of the driver for not possessing driving licence on his admission. In the instant case, it is not in dispute that prior to the date of the accident, the first respondent was a mechanic and he was driving vehicle for a number of years. He was having learner's licence from 24-11-1978, For arguments' sake even if the case of the appellant is admitted that the licence expired and the first respondent was not having a valid licence as it was not in force, the question is whether the insurance company is absolved from liability. In S'ew India 1966 ACJ 82 (MadAssurance Co. Ltd. v. C. B. Shankar, ), this Court held that the onus is on the insurer to plead and prove that the vehicle was driven by a person without a valid driving licence. In order to escape liability not only should the insurer prove that the driver of the; vehicle was not holding a licence at the time of the accident but also that he was a disqualified from holding or obtaining a licence or that he never had any licence at all. Merely proving that on the date of the accident, the driver did not have a licence and that he pleaded guilty is not enough to hold that the insurance company is not liable, In the above case, the driver was charged under Section 3 and the owner of the vehicle under Sec. 5 of the M.V. Act for contravention of the said provision. Both pleaded guilty and were convicled. The insurer was held liable on the ground ihat they had failed 10 prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. It was observed that by merely causing a notice to be served on the onwer of the vehicle and the counsel for the owner of the vehicles for the product ion of the driver's licence would not enable the insurer to discharge their onus. It was so held in United India Fire and General Ins. Co. Ltd. v. Ayisa, 1979 ACJ 526 (Mad) and Srinivasa Roadways, Madurai v. Saroja. : AIR1975Mad126 . It is not the case of the appellant insurance Company, that the first respondent was disqualified from holding or obtaining licence and that he never had licence at all. In the instant case, the finding of the learned single Judge is that the first respondent was having a licence which was in force in view Of the evidence of R.W. 1 and that the Insurance Company has not discharged their burden by adducing evidence that the first respondent was not having any subsisting licence at the time of the accident. In view of the ratio laid down in the above decisions, the admission of the first respondent and the conviction awarded to the first respondent are not sufficient to absolve the Insurance Company as the Insurance Company has not discharged the onus by taking steps to summon the very licence either from P.W. 1 or from the Road Transport Authorities who issued the licence.
4. Lastly it was eon tended by the learned Counsel for the appellant that in view of the evidence adduced in the case that the first respondent was holding only, a learner's licence and in view of the Bench decision of this Court reported in Ambujam v. Hindusthan Ideal Insurance Co., : (1980)2MLJ570 : (AIR 1980 Mad 214), the said licence is not an effective licence which alone could enable the first respondent to take the motor cycle on public road and as the accident occurred whilst the vehicle was being negotiated by a person who did not have a regular licence, the Insurance Company was right when it took up the objection that the policy did not govern such a situation and that it should be exonerated from paying compensation to the injured person. In that case, it was found that it is common ground that at or about the time of the accident in which the appellant's taxi was involved, it was being driven by a person who was a learner and did not have an effective licence which alone would enable the person to drive a motor vehicle independently on a public road. Further, the person who was driving the vehicle at the time of the accident was not a regular driver, but was only a mechanic who had a learner's licence. There was no one to help the person in his driving or keep watch over his driving and that there was none to observe the performance of the vehicle. Further, there is no evidence to show that the learner or the mechanic who was at the wheel, did not have an express authority from the owner, to drive the vehicle, in the circumstances, it was held by the single Judge in that case that the Insurance Company was to be exonerated from liability. On appeal, the learned Judges relied on Ss. 3. 4 and 5 and observed :
'The intention of the Legislature is made more clear in Sections which speaks of the responsibility of owners of motor vehicles for contravention of Secs. 3 and 4. No owner or person in charge of a motor vehicle shall cause or permit any person, who does not satisfy the provisions of S. 3 to drive a motor vehicle. Therefore, even if the owner could be deemed to have given any permission to the learner, who was driving the vehicle, it would contravene Section 5 of the Act. On the facts, therefore, we are satisfied that as R.W. 1 who was driving the vehicle had only a learner's licence, but not an effective licence, which alone could enable him to take a motor vehicle on a public road and as the accident occurred whilst the vehicle was being negotiated by a person who did not have a regular licence, the Insurance Company was right when it took up the objection that the policy did not govern such a situation and that it should be exonerated from paying compensation to the injured person.'
The above decision was distinguished by the learned single Judge of this Court. In the instant case, the vehicle involved is only a two wheeler, namely, motor cycle. Rule 39 of the Tamil Nadu Motor Vehicles Rules lays down that sub-section (1) of S. 3 of the Act shall not apply to any person driving a motor vehicle in a public place during the course of receiving instruction or of gaining experience in driving with the object of presenting himself for the test required by clause (a) of sub-section (6) of S. 7 of the Act. As per sub-rule (ii) of Rule 39 there must, beside the driver in the vehicle, he as instructor a person duly licensed to drive the vehicle and sitting in such position as to be able readily to stop the vehicle. But as per proviso to the said Rule the sub-rule is not applicable to the case of two wheeler. Under sub-section (2) of S. 3 of the Motor Vehicles Act, the State Government is empowered to specify the conditions subject to which subsection (1) would not apply to a person receiving instructions in driving of a motor vehicle. A perusal of the provisions of subsection (2) of S. 3 of the Act would show that the State Government is authorised to prescribe conditions subject to which sub-sec. (1) would not apply to a person receiving instructions in driving of a motor vehicle. It is only under the said provision. Rule 39 of the Tamil Nadu Motor Vehicles Rules was framed and conditions have been laid down by the Government and a person receivinng instructions in driving a motor vehicle is issued a permit commonly known as learner's licence. In view of the above circumstances, it cannot be said that learner's licence is not a valid permit issued by the specific authority Hinder S. 3 of the Act. Further, as per clause (ii) of sub-section 2(b) of S.96 which enumerates the delence open to the insurance company, the words used are not 'an effective driving licence' as in S. 3(1) and instead, it is only mentioned 'driving by any person who is not duly licensed'. It cannot be said that a person who is authorised by the competent authority to drive in the public place under a temporary permit meant for persons intending to learn driving would not be a person duly licensed to drive in a public place. These distinctions were not brought to the notice of the learned Judges while deciding the above case. (1980) 2 Mad 570 : AIR 1980 Mad 214 Further the abovesaid case was in respect of a four-wheeler vehicle and that too. a taxi. It has been held by a Division Bench ol the Gujarat High Court in Chanchalben v. Shailesh Kumar Pandurao Thakore. : AIR1974Guj145 . After comparing the provisions of the Road Traffic Act, 1960 of Great Britain, whose provisions are in pari materia with the present Act and the English decisions rendered thereunder, that a person holding a learner's licence wd'uld be a duly licensed driver within the meaning of Section 96(2)(b)(ii). The same view was reiterated in United India Insurance Co. Ltd. v. Tilak Ram, and Gurmukh Singh v. Ajmer Kaur. 1986 ACJ 983 (DB) It is also to be noted that a condition mentioned in the policy is to the effect that a driver is a person who holds a valid driving licence at the time of the accident or had held a permanent driving licence (other than a learner's licence) and is not disqualified from holding or obtaining such a licence. The learned Counsel lor the appellant argued that the person holding learner's licence would not be entitled to drive the vehicle. As already observed, such a condition would run counter to the provisions of S. 96(2). It would not be enforceble nor on its basis it would be possible for the insurance company to avoid its liability to indemnify the owner of the vehicle. It has been repeatedly held by various High Courts and Supreme Court (sic) and the Insurance Company is entitled to take defences available only under S. 96(2)(b)(ii). If we were to go by the terms of S. 96(2)(b)(ii) of the Act, the exclusion could be of the persons who had been disqualified, as is mentioned therein. Further the terms of the policy in this regard were to be interpreted in the light of the purposes of the statute, which made a provision lor indemnifying cases involving third parties in accidents and for the satisfaction of the claims arising therefrom, in favour of the party affected rather than to absolve the insurance company of indemnity. For all these reasons, we are ol the view that the decision relied on by the learned Counsel for the appellant and reported in Ambujam v. Hindustan Ideal insurance Co.. : (1980)2MLJ570 : 1981 ACJ 175 : AIR 1980 Mad 214is not at all helpful to the case of the appellant in this case and on the other hand, we are of the view that no interference is called for with the judgment of the learned single Judge of this Court.
In the result, the appeal fails and stands dismissed. However there will be no order asto costs.
5. Appeal dismissed.