PANWAR, J. - (1.) THIS miscellaneous appeal filed by the owner of the defaulting vehicle is directed against the judgment and award dated 26. 05. 2001 passed by the Motor Accident Claims Tribunal, Udaipur (for short, referred to hereinafter as `the Tribunal') whereby the Tribunal awarded a sum of Rs. 1,63,000/- by way of compensation in favour of the claimant-respondents holding the appellant (herein) liable for payment of the entire sum of compensation.
(2.) THE challenge to the award impugned in these proceedings by the appellant is manifestly directed against the respondent No. 7 National Insurance Company, the insurer. THE appellant has prayed that the claim petition filed by the respondents No. 1 to 6 may be dismissed with costs or in the alternative, the Insurance Company, may also be held liable for making payment of the compensation. THE entire contentions raised by the appellant center upon the sole question as to liability for payment of the amount of compensation awarded by the Tribunal. THE appellant has throughout striven to show that the insurance company is to be held liable for the payment of the amount of compensation nd under the certificate of insurance the insurer ought not t have been exonerated from the liability. thus, in effect, law not the facts is relevant to the present controversy at this appellate stage when, in this background, this Court does not have any occasion to look into an apparent perversity on appreciation of the facts. I have heard learned counsel for the parties and perused carefully the judgment and award impugned. In the present case, the respondent Insurance Company was saddled with the burden to prove issues on the questions of its liability in the face of objection raised by it and the fact that the driver of the offending vehicle was not having a valid driving licence at the relevant time of accident on 19. 03. 1996. Supporting the award learned counsel for the insurance company Mr. Sanjeev Johari contended that the insurance company proved to the hilt the issues No. 3 and 4 and, accordingly, these issues were decided in favour of the insurance company and against the appellant insured. As against this, learned counsel fro the appellant vehemently argued that the insurance company failed to discharge the burden and on the basis of evidence led by the insurer it cannot be said that the issues were sufficiently proved by it to arrive at a finding in its favour. Learned counsel for the appellant contended that the insurance company cannot be permitted to devolve the onus by exhibiting various notices issued to the appellant and driver Hanif Khan to produce the driving licence. He argued that witness Dilip Lakhotia produced by the insurance company stated in his examination-in- chief that he had inspected the criminal file of the case at Sarada Court wherein neither the original nor a copy of the driving licence of Hanif Khan was placed on record. In his cross- examination, this witness admitted that he was deputed by the company for complete investigation in the matter, however, the neither made any enquiry form driver hanif Khan personally about his having or not having the driving licence nor did he go to the R. T. O. office at Udaipur for ascertaining the fact about there being any licence issued to Hanif Khan because he did not have the DL description. He stated in the cross-examination that he had nod description of the driving licence and, therefore, he did not make any application to the RTO for getting the detail of the driving licence of driver Hanif Khan. Another witness of the insurance company who admitted the insurance policy Ex. NA/1 was Mahendra Kumar Surana, an Executive Officer of the company. He also stated in his examination-in- chief that in the criminal case neither the owner Yogesh Surana (appellant herein) nor the driver Hanif Khan produced the driving licence in the course of the police enquiry and it is correct that the inference of there being no driving licence with the driver hanif Khan is based on the record of the criminal proceedings. He admitted that driver Hanif Khan is resident of Savina Khera, Kachchi Basti, Udaipur and they (company) did not make any application to the RTO, Udaipur for finding out facts about the driving licence of Hanif Khan. Before the Tribunal, the insurance company raised objections disowning its liability on the ground of infringement of the policy terms and, therefore, on the basis of pleadings of the company issues No. 3 and 4 were framed by the Tribunal. The burden to prove these issues were squarely upon the shoulders of the insurance company. In support of its case, the insurance company exhibited copy of notice Ex. NA/2 issued to owner Yogesh, acknowledgment receipt Ex.-NA/4, copy of notice issued to driver Hanif Khan Ex. NA/5, acknowledgment receipt Ex. NA/7, investigation report Ex. NA/8, another notice issued to owner Yogesh Ex. NA/9, another notice issued to driver hanif Khan Ex. NA/12, etc. Witness Dilip Lakhotia was entrusted with the responsibility of investigation into the matter of there being or not being valid driving licence with the driver Hanif Khan at the time of accident and, as is evidently clear, this witness admitted that his report is based on the record of the criminal case and he did not make any enquiries at the RTO office, Udaipur not the company made any application to the RTO for getting the detail of the driving licence of driver Hanif Khan. It is throughout the case of the insurance company that the company issued notices to both owner and driver to produce the driving licence and none of them produced it. It is thus obviously the inference of the insurance company that the driver did not have valid driving licence and, therefore, the insured owner committed breach of the terms and conditions of the insurance policy. Devolution of burden bin this manner is unknown to law. The insurance company his neither produced any record of the office of the Regional Transport Officer nor any official of the RTO was examined in this behalf before the tribunal by the insurance company. This Court, in New India Assurance Co. Ltd. vs. Abdula @ Patla Abdula & Others (1), while dealing with similar situation has held that the burden to prove that the driver of the offending vehicle was not holding a driving licence was to be discharged by the Insurance Company. In that case, neither any official of the DTO was produced nor any affidavit of the officer concerned was filed regarding validity thereof. The document in question was, therefore, not accepted. Under the circumstances, it was held that the Insurance Company has failed to prove that the driver of the offending truck was not possessing valid driving licence.
(3.) LAW of evidence is very clear in this respect. It says that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This the onus of proving the fact pleaded in the objections raised by the insurance company squarely lay upon it and at no stage or in no manner it would shift by hook the crook. The law does not permit drawing an adverse inference if the owner or driver failed to produce the driving licence in response to notices issued to them by the insurance company. The governing principle is that who would fail if no evidence at all were given on either side. This principle is reflected in the judgment of the Hon'ble Supreme Court in Narchinva Kamat vs. Alfredo Antonio Doe Martins Unless it is established on the material on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-Section (1) of Section 96 of the Motor Vehicles Act. When the insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance and if the breach of a term of contract permits a party to the contract not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract; and, the test in such a situation would be that who would fail if no evidence is led. The Hon'ble Supreme Court in Narchinva Kamat & Another vs. Alfredo Antonio Doe Martins & Others (supra) while deciding the liability of the insurance company, clarified the situation in the following terms: " The burden to prove that there was breach of the contract of insurance was squarely company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R. T. A. which issues the driving licence keeps a record of the licence issued and renewed by it. The insurance company could have got the evidence produced the substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company. " Under the circumstances, it cannot be said that the insurance company has established by legal evidence that the driver of the offending vehicle was not holding a valid licence on the relevant date of the accident. In this view of the matter, the learned Tribunal committed error in arriving at the finding that the insurance company has sufficiently discharged its onus to prove that the driver Hanif Khan was not having a valid driving licence at the time of the accident and, therefore, the insured owner committed a wilful breach of the terms and conditions of the insurance policy. This finding is based on wrong appreciation of the material on record and deserves to be set aside. Issuances of notices to the owner and driver of the offending vehicle by the insurance company to produce the driving licence would neither enable the insurance company to prove its objections nor any adverse inference can be drawn against the insured. The driving licence is issued by the State authority i. e. , the concerning Transport authority and it is the onus of the insurance company to prove its case of the insured committing breach of the terms and conditions of the insurance policy by allowing the vehicle to be driven by a person not having a valid driving licence by leading relevant evidence by way of production of authoritative documents duly testified by examination of some official of the Department. Such is not the case in the present matter. In view of the foregoing discussion, this appeal is partly allowed. The finding of the learned Tribunal on issued No. 3 and 4 stands set aside and the judgment and awarded dated 26. 5. 2001 is modified to the extent that the respondent insurer viz. , National Insurance Company, Udaipur is held jointly and severally liable to pay the amount of compensation in terms of the insurance policy Ex. NA/1 alongwith the appellant owner. There shall, however, be no order as to costs. . ;