TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) AS per the facts of these cases the passengers were travelling in Bus No. RRY 3435 on 7th Feb. , 1993 and this bus was driven by non-applicant No. 3, Om Prakash rashly and negligently and the bus turned resulting into the death of passengers Shripal and Kalia whereas Nathi, Devli, Paru, Kanhaiyalal, Kesari Mal and Magna were injured. The bus was owned by non-applicant No. 1 Smt. Pushpa Devi. This bus was insured with non-applicant No. 2, Insurance Company who is appellant in all these appeals. In claim case No. 102, deceased was Shripal and claim was for Rs. 9,19,000/ -. The claim case No. 147/93 was filed by wife of deceased Shripal and two children and mother of the deceased Shripal. The claim No. 102/93 was also filed by the claimant's wife and her two minor daughters for the death of the same person, Shripal. In claim case No. 102/93 claim of Rs. 3,92,500/- was claimed by the claimants and the Tribunal awarded Rs. 1,00,000/- while deciding both the claim cases No. 102/93 147/93. The claim case No. 106/93 was filed by the wife of deceased Kalia whereas the claim case No. 148/93 was filed by the mother and father of Kalia alongwith the same, wife of Kalia. In claim case No. 106/93 claimants claimed Rs. 9,91,000/- and in claim case No. 148/93 Rs. 3,92,500/- were claimed. The tribunal awarded Rs. 1,50,000/- in both the cases. In claim case No. 101/93, Nathi (injured) claimed Rs. 2,78,000/ -. In claim case No. 103 Devli (injured) claimed Rs. 2,63,000/- in claim case No. 101/93, the tribunal awarded total Rs. 25,000/- whereas in claim case No. 103/83 the tribunal awarded only Rs. 1000/ -. In claim case No. 104/93 claimant Paru claimed Rs. 2,60,000/ -. The tribunal awarded total Rs. 2000/- only. In claim case No. 111/93 the injured Kanhaiyalal claimed Rs. 3,23,400/- but the tribunal rejected the above claim petition. In claim case No. 112/93 injured Keshrimal claimed Rs. 7,91,100/ -. The tribunal awarded Rs. 10,000/- only and in claim case No. 113/93 the injured Magina claimed Rs. 3,29,100/- whereas the tribunal awarded Rs. 12,000/ -. The appellant has challenged the award passed in claim case of Keshrimal, Bherki, Magina, Paru, Nathi by filing these appeals and also filed separate appeals in two separate claim petitions.
(3.) LEARNED counsel for the appellant vehemently submitted that in this case the driver and owner specifically admitted by adopting the reply filed by the appellant before the claims tribunal regarding violations of the condition of the policy and violation of the statutory requirements. The non-claimant No. 1, Smt. Pushpa is the owner of the vehicle at the time of accident. The tribunal recorded in the order sheet itself that non-claimant No. 1 and 3 adopted the reply filed by the non-applicant No. 2, appellant-Insurance Company and when the defence taken by the appellant Insurance Company was accepted by the owner and driver of the vehicle. There was no reason for the appellant to produce any evidence and appellant can rely on the admission of the owner and the driver of the vehicle. According to the learned counsel for the appellant the issue No. 3 was also framed on the basis of the pleas taken by the appellant-Insurance Company and when there is admission of violation of condition of the policy of statutory provision then the Insurance Company is not liable to make payment of the claims. Learned counsel for the appellant submitted that the driver of the vehicle was not having a valid driving licence and, therefore, in view of the decisions given in the case of United India Insurance Company Ltd. vs. Gainchand & Ors. (1), and the judgment of the Punjab and Haryana High Court in case of Krishna Bus Service Pvt. Ltd. vs. New India Assurance Co. Ltd. & Ors. (2), the Insurance Company cannot be held liable. Learned counsel for the appellant further submitted that when defence is taken by the Insurance Company with respect to the fact that driver was not having driving licence and driver failed to produce the licence, then Insurance Company is not liable. The learned counsel for the appellant also relied upon the judgment of Punjab and Haryana High Court, reported in 1990 ACJ 940 So far as the legal position is concerned with respect to the proposition that in case the driver is not having valid driving licence then, in the given circumstances the Insurance Company can be held not liable for payment of the amount of the claim, but at the same time burden to prove this defence is upon the Insurance Company and the claimant is stranger to the grant of licence to the driver and grant of employment by the owner of vehicle to the driver. Therefore, when these facts are in the knowledge of the owner and when the defence is taken by the Insurance Company of violation of the condition of the Insurance Policy or the violation of the statutory requirement then it is for the Insurance Company to prove these facts by producing evidence. It is different matter that what should be the evidence of the Insurance Company but the Insurance Company is required to discharge its initial burden of proof by taking defence in the pleadings and by giving evidence in support of the defence taken in the pleadings. Here in this case, admittedly, no evidence was produced by the appellant-Insurance Company. Now the question remains, what is the effect of submitting by the owner and driver of the vehicle that they are adopting the reply filed by the Insurance Company and whether by saying so by the owner and driver of the vehicle, how they are bound by the pleas taken by the Insurance Company, which is against the interest of the owner and the driver of the vehicle. ;