- (1.) Heard Sri V.C. Dixit, learned counsel for the appellant and Sri Venu Gopal, Advocate, holding brief of Sri B.N. Tiwari, learned counsel for the claimants-respondents. This first appeal from order under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as "Act, 1988") has been preferred by Insurance Company aggrieved by judgment and order dated 8.12.1994 passed by Motor Accident Claims Tribunal/Special Judge (Additional District Judge), Varanasi in M.A.C.P. No. 62 of 1992 awarding a sum of Rs. 1,35,000/- towards compensation to the claimants-respondents holding only the Insurance Company responsible for payment of the said compensation.
(2.) It is contended that Tractor in question was being driven by Sri Ram Adhar son of Mohan Kumar, who did not possess any driving licence and since the insured vehicle was being driven by a person, who did not possess a driving licence or valid driving licence, the Insurance Company was not responsible for payment of any compensation since there was breach of terms of insurance. The Tribunal formulated issue No. 5 as under: "Whether at the time of the accident, tractor driver Ram Adhar, son of Mohan Kumar had a valid driving license or not? If so, its effect?"
(3.) Issue No. 5 has been discussed by Tribunal as under: "Specific evidence of PW-2 is on record to prove that Ram Adhar Kumar son of Mohan Kumar was driving the tractor in question at the time of the accident. The witness knows opposite party No. 5 Ram Adhar from much before the occurrence, as according to the witness, this Ram Adhar used to bring sand on the tractor in that area even before this occurrence and thus he was known to PW-2 opposite party No. 5 Ram Adhar has filed written statement denying his involvement with the tractor in question at the time of accident alleging that neither he knows driving nor he has any driving license nor he was driving the tractor in question. It is noteworthy that after filing the written statement, Ram Adhar did not participate in the further proceedings of the case nor he has examined himself as a witness of opposite parties asserting the allegation made in the written statement whether he had a valid driving license at the time of the accident or not, it was for the opposite party to prove that he did not have any valid driving license at the time of the accident. The Insurance Company has not produced any evidence in this regard. The story put for word by DW-1 regarding the alleged accident is not trust-worthy in as much as DW-1 was the son of the vehicle owner. As per his statement, he had stopped the tractor in Orderly Bazar at about 8-9 PM at a distance of 30 to 40 meters from the Orderly Bazar Tiraha and he was sitting in a tea shop when a scooterist came on the right side of the road and collided with the tractor, crowed gathered there and DW-1 silently escaped away from the scene. It is note-worthy they in this regard that DW-1 was the driver as well as the son of the owner of the vehicle and if the vehicle was not involved any accident, why DW-1 escaped away silently without informing the police or without putting his claim for the release of the vehicle at the Police Station concerned. The learned counsel for the claimants has argued that it was the duty of the Insurance Company to prove that the driver had no valid driving license at the time of the accident. My attention has been drawn towards the observation made in Dularbai and others Brij Mohan Khandelwal and others : 1987 TAC (1) 64 M.P. (High Court), wherein it has been observed by the Hon'ble High Court that the burden to establish that the driver has no valid license lay on the Insurance Company. Opposite party No. 5 Ram Adhar himself has not appeared before the Tribunal to assertion oath that he did not have valid driving license at the time of the accident. Sri B.V. Kotgire v. V. Jaiwantathete, 1993 1 TAC 207, also the Hon'ble High Court of Bombay has observed that if the licensed driver of the owner left vehicle in case of the cleaner and that he also left the key, these facts were sufficient to bind the Insurance Company. The aforesaid observation find support from : AIR 1989 SC 2002. There is sufficient evidence on records to hold that Ram Adhar was driving the tractor in question at the time of the accident, as he was arrested on the spot by the police and the tractor itself was seized just after the accident. It is also establish on record that the tractor was insured at the time of the accident. It was for the opposite parties and particularly opposite party No. 3 to prove the fact with sufficient evidence that Ram Adhar did not have a valid driving license or the terms of the insurance policy have been breached by the owner of the vehicle or its driver. In these circumstances, it may be concluded that the opposite parties could not prove that Ram Adhar did not have valid driving license at the time of the accident and since the insurance policy was comprehensive the Insurance Company cannot escape from the liability.";