TATIA, J. - (1.) HEARD learned counsel appellant as well as claimants and the owner of the vehicle. None appeared for the driver of the vehicle.
(2.) THE brief facts relevant for the purpose of decision of this appeal are as under:- That on 19. 6. 93 at about 7. 00 PM driver Ramchandra was driving Jeep No. RST 5184 and Gorkharam, Joraram, Anopram, Indraraj and Fatharam were traveling in the Jeep. At about 8. 30 PM near Bawari a truck No. RJ19-G-1221 came and hit the Jeep causing death of Jeep driver Ramchandra on spot and in the same accident Indraraj and Joraram also died. The present claim petition was filed by the father and mother of deceased Ramchandra. At the time of accident deceased Ramchandra was of the age of 25 years only and it is stated that he was having a valid driving licence. Due to this accident the present claim petition was filed by Mansa Ram and Smt. Rukadi Devi who are the father and mother of the deceased Ramchandra and the claim case No. 116/94 was registered before the Accidents Claim Tribunal, Phalodi. In the claim, the claimants claimed Rs. 9,86,000/- only. In the claim petition, the driver, owner and Insurance Company were impleaded as party. It is submitted by the learned counsel for the appellant that reply was filed by the Insurance Company- appellant before the tribunal and the Insurance Company took a specific plea that the driver of the truck Sitaram was having a licence for driving light motor vehicle and he had no licence to drive heavy vehicles and, admittedly, Sitaram was driving heavy vehicle, i. e. truck, therefore, the Insurance Company is not liable as the owner of the vehicle permitted a person to drive the vehicle without there being any valid licence. According to the reply of the appellant-Insurance Company, the appellant- Company was aware of existence of licence of Sitaram driver. On the plea of Insurance Co. a specific issue No. 3 was framed by the tribunal, which reads as under:- Vk;k odr nq?kzvuk Vd ,sls O;fdr }kjk pyk;k tk jgk Fk ftlds ikl os/k ,oa izhkkoh Mkbzfoax ykbzlsal ugha Fkk ls vizkfkh chek deiuh eqVkotk ds fy, fteesokj ugha gs\** A bare perusal of the above issue, according to learned counsel for the appellant, that there is a specific plea of the appellant-Insurance Co. and driver & owner did not appear in the witness box. Therefore, every adverse inference is required to be drawn against the driver and owner that the driver was not having a valid driving licence and when it it Found that driver was not having a valid licence, this itself is a clear breach of condition of the Policy and the Insurance Company is not liable to reimburse any amount awarded against the driver resulting into award against owner. Learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in United India Insurance Co. , Ltd. vs. Shri Gian Chand & Ors. (1 ). According to learned counsel for the appellant the Hon'ble Apex Court held that once the owner did not appear in the witnesses box to prove his case, an adverse inference had necessarily to be drawn against him.
(3.) I may quote the relevant portion of the above judgment of the Hon'ble Apex Court, which reads; ``in fact, once he did not step in the witness box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. '' In view of the above finding the Hon'ble Apex Court held that Insurance Company is not liable for the award amount. I perused the award passed by the tribunal as well as the issues framed by the tribunal and the reply of the claim filed by the Insurance Company. It is true that there is a specific plea of the Insurance Company in reply that the truck driver Sitaram was having licence only to drive light motor vehicle and Insurance Company got this information from the copy of the licence seized by the Police. ;