Rajasthan High Court - Jaipur
Oriental Insurance Co. Ltd. vs Hakka Ram And Ors. on 18 April, 2003
Equivalent citations: 2005ACJ296, 2003WLC(RAJ)UC733
Author: H.R. Panwar
Bench: H.R. Panwar
JUDGMENT H.R. Panwar, J.
1. This appeal under Section 173 of Motor Vehicles Act, 1988, is directed against the judgment and award dated 6.12.1996 passed by the Motor Accidents Claims Tribunal, Jalore (for short, 'the Tribunal') whereby the Tribunal awarded compensation of Rs. 40,000 in favour of the respondent-claimant Nos. 1 and 2 (for short, 'the claimants') and against respondent No. 3 and the appellant. Being aggrieved by the judgment and award impugned the appellant Oriental Insurance Co. Ltd. (for short, 'the insurance company') filed the instant appeal challenging its liability.
2. I have heard learned counsel for the parties. Perused the judgment and award impugned and also carefully gone through the record of the Tribunal.
3. It is contended by learned counsel for the insurance company that the Tribunal fell in error in holding the insurance company liable for the compensation. It is further contended that on the relevant date of accident the driver of the jeep bearing No. RRN 9273 was holding a learner's licence and as such he was not having an effective licence, therefore, the insured committed a breach of condition of the policy.
4. Learned counsel for the respondents supported the judgment of the Tribunal and contended that the driver of the vehicle was holding an effective learner's licence on the relevant date of the accident. He further contended that while respondent No. 3 was driving the jeep holding a learner's licence, one Binjala Ram was with him, who was duly licensed and, therefore, the respondent No. 3 was accompanied by Binjala Ram as an instructor holding an effective driving licence to drive the jeep. The policy, Exh. A-l, provides for person or classes of persons, including the insured, entitled to drive: Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence; and provided also that person holding an effective learner's licence may also drive the vehicle and such a person satisfies the requirement of Rule 3 of the Central Motor Vehicles Rules, 1989. Rule 3 of the Central Motor Vehicles Rules, 1989 reads as under:
"3. General.-The provisions of subsection (1) of Section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as-
(a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle;
(b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and
(c) xxx xxx xxx"
From the statement of NAW-2 Teja Ram it is established that at the time of the accident, he was holding a learner's licence, Exh. NA/2 and he was accompanied by Binjala Ram who was holding an effective driving licence to drive the vehicle. The statement of NAW-2 Teja Ram remained uncontroverted before the Tribunal. The appellant insurance company has not controverted the evidence led by respondent No. 3.
5. On the pleadings of the insurance company, the Tribunal framed issue No. 4. The burden to prove this issue was squarely on the insurance company which failed to prove the issue by reliable and cogent evidence. The Claims Tribunal held that the insurance company has not led any reliable evidence to prove this issue and accordingly, the issue was decided against the insurance company. I find no reason to take a different view than the one taken by the Tribunal. In Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC), the Supreme Court has held that where the insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance, if a breach of a term of contract permits a party to the contract to 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. The test in such a situation would be who would fail if no evidence is led. Obviously, in the instant case, the burden to prove the issue No. 4 with regard to the insurance company complaining of breach of term of the policy was on the insurance company itself who led no evidence to prove the issue. Claimants or the insured respondent No. 3 were under no obligation to furnish the evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance policy.
6. In this view of the matter, I find no merit in this appeal. Accordingly, the appeal fails and is hereby dismissed. No order as to costs.