Karnataka High Court
United India Fire And General Insurance ... vs Kum. Naga Ratna on 29 October, 1980
Equivalent citations: AIR1981KANT169, AIR 1981 KARNATAKA 169, ILR (1981) 1 KANT 115
JUDGMENT G.N. Sabhahit, J.
1. This appeal by the Insurance Company is directed against the judgment and award, D/- 3rd Dec., 1979, made by the Motor Accidents Claims Tribunal, Bangalore City, in M. C. (XVC) No. 60 of 1979, on its file, awarding compensation of Rs. 20,519.05 against the respondents and directing the Insurance Company to pay the same along with costs and interest.
2. The learned Advocate appearing for the Insurance Company, vehemently contended that in the instant case the. Insurance Company took a specific ilea that the Company was not liable because the vehicle viz., the Scooter in question, was not driven at the relevant time by a person holding' valid driving licence. He further submitted that R. W. I Narayan got marked Exts R-1 to R-3 which prima facie establish that the driver had no driving licence on the date of the accident . Thus according to him the Insurance company established prima facie that the driver had no driving licence on that day. It was for the owner to produce the driving licence, if the driver had any either before the date of accident or on the date of accident He having not done so, it was submitted, that the Company was not liable to indemnify the owner by paying the compensation.
3. As against that, the learned Advocate appearing for The claimant argued supporting the judgment and award of the Tribunal.
4. The sole point, therefore, that arises for out consideration in this appeal is, whether the Tribunal was justified in holding that the insurance Company was liable to indemnify the owner, by paying the compensation awarded in the case along with costs and interest
5. Section 96 (2) of the Motor Vehicles Act, 1939, speaks of defences that can be raised by the Insurance Company in an action for compensation; inter alia, one of the defences available is that there has been breach of a special condition of the policy, being one of the following conditions, namely:
(ii) a condition excluding driving by a person or, persons or by any person who is not duly licensed, or by any person who has been disqualified for holding as obtaining a driving licence during the period of disqualification;
6. Thus the learned Counsel for the appellant submitted that one of the conditions incorporated in the policy was that the vehicle should be driven by a person hoiding a valid driving licence or by any person who has not been disqualified for holding or obtaining a driving licence he having held the licence.
7. It is uniformly held by different High Courts in India including our own that the burden of establishing any breach of condition in the policy is on the Insurance Company.
In the case of Jogindra Kuer v. Jagadish Singh, it is laid down by a Division Bench of the Patna High Court that where the Insurance Company takes the plea with regard to breach of the terms of the policy, contending that the driver of the inured vehicle was not duly licensed or was disqualified for holding or obtaining a licence, the onus lies upon The Company to establish its allegations. It was held in that case that the Company did not satisfactorily prove that the driver had no driving licence or was disqualified on the date of accident or that there was any breach of condition of the policy in this respect In a recent decision in the case of Indian Mutual Insurance Co. v. United India Fire General Insurance Co. Ltd., (1978 Acc CJ 366) it is laid down by the Andhra Pradesh High Court that the burden of proving satisfactorily that the driver had no licence to drive on the date of the accident is on the Insurance Company. His Lordship has observed:
"The Insurance company, however, did not choose to examine anyone from the Regional Transport Officer's Office, nor did it choose to call for the production, of the licence issued to the 3rd respondent. It merely got a notice, Ex. B-2 issued to the 2nd respondent to produce the driver in Court to give evidence. This step taken by the 4th respondent is of no avail, for the 2nd respondent himself denies that be was the owner of the vehicle and that he had authorised the, 3rd respondent to drive the vehicle. In response to the 4th respondent's notice, the 2na respondent, therefore, could not be expected to produce the 3rd respondent for being-examined as a witness. It was not within the power of the 2nd respondent to produce the 3rd respondent as a witness in the case. In any event, on this account, no interference adverse to the petitioner's interest could be drawn. The 4th respondent ought to have taken effective steps to examine the driver."
Thus it can be safely laid down that it is for the Insurance Company to plead and prove breach of any condition in the policy which exempts it from indemnifying the owner, and enables it to deny liability to third party claim.
8. In the instant case, it is no doubt true that the learned Advocate appearing for the appellant Insurance Company submitted that R. W. 1, a witness examined on behalf of the Insurance Company, got marked Exts. R-1 to R-3. Ext. R-1 is a copy of the policy which contains the condition. Ext. R-2 is the Certified copy of the Order Sheet in Criminal Case 2471/1978 lodged against the driver of the scooter in question. Ext. R-3 is the plea recorded of the driver. It is mainly on Exts..R-2 and R-3 that the learned Advocate relied to show that the driver admitted before the Criminal Court that he had no driving licence on the date of the socident
9. The learned Advocate appearing for the respondent-claimant, however, submitted that Ext. R-3 the plea of the accused, would not amount to an admission that he had no driving licence on the date of the accident.
10. In order to appreciate the rival contentions, it is necessary to read Ext. R-3, the plea recorded by the Criminal Court:
"The allegations against you is that on 21-8-1978 at about 17-2OHours you being the rider of scooter No. MYL 9356 rode the same along S. C. Road near Kino Talkies, from South to North in a manner so rash or negligent as to endanger human life or personal safety of others, dashed the same against a pedestrian C. W. 3 Kumari Naga,rathna, as a result of which the said girl fell down and sustained grievous injuries on her person, which is an offence under Sections 279 and 338 of the 1. P. C. Further you rode the said vehicle without having a valid driving licence which is also an offence under Section 3 (1) read with Section 112 of the Indian Motor Vehicles Act.
Do you plead guilty or have you any defence to make?
11. It may at once be noted that the manner of recording the plea by the learned Magistrate is not in accordance with the law and the rulings laid down in that behalf by this Court. He must put one allegation and elicit the answer thereon. If he goes on putting several allegations and asks one question, it may not amount to recording a plea legally at all. It is confusing and confounding and the one sentence would be vague and nebulous. It is not understood whether that admission refers to first plea, or second plea' or .3rd plea. - This Court has deprecated recording of plea in that manner in cases more than once. Besides, when we read the plea it is not known whether the plea was explained to the accused in Kannada as the answer is taken down in Kannada the language of the accused; there is no endorsement to that effect. Therefore, we are constrained to observe that we are unable to bring ourselves to agree with the submission made by learned Counsel that the plea is a complete admission of the driver that be had no driving licence, On the other hand, as explained above it is no admission at all of the driver that he had no driving licence. Apart from this, the certified copy of the plea in the Criminal Court proceed at Ext. R-3, there is nothing also produced by the Insurance Company to show that the driver on that day had no driving licence. As pointed out in the aforesaid cited Andhra Pradesh decision, it was for the Insurance. Company to summon driver. That the driver had not stopped into do box cannot in any way prejudice the claim of the petitioner who has suffered the injuries. The Company has not taken any steps to summon the driver to come with the licence, The Insurance Company could have again summoned the R~ T. 0. to produce the relevant licence if any, or at any rate, produce the certified copy of the licence from the R. T. O.'s Office, or an endorsement from the R. T. O. that the driver had no licence. This, we observe, because the learned counsel for the appellant submitted that the burden is of a negative nature. We are only pointing out the various ways by which the Insurance Cornpany could have proved that the driver had no licence on the date of the accident.
12. The learned Advocate appearing for the appellant however invited our attention to a decision of Madhya Pradesh High Court in the case of Anand Insurance Co. Ltd. v. Hasanali, (1975 Acc CJ 471) wherein it is laid down that the burden of proof is on the driver to produce the licence before the Court and not on the Insurance Company and as such no liability can be fastened on the Insurance Company. With great respect to their Lordships of the Madhya Pradesh High Court, we. are unable to agree with the view. The preponderance of authority of different High Courts is in favour of the proposition that the burden is on the Insurance Company to prove any-breach in the policy in order to get an exemption from liability.
Moreover, the High Court of Madhya Pradesh in a later decision in the case of Ruby General Insurance Co. Ltd., v. Kesharbai, (1976 Ace CJ 485) has distinguished and differed from its earlier ruling rendered in the aforesaid case of Ananda Insurance Co. Ltd., (1975 Ace CJ 471) (Madh Pra) and has held that the burden to prove any breach of condition in the policy is on the Insurance Company. This Court has held in the case of Sanjiv Shetty v. Anantha, (1976) 1 Kant LJ 430 : (AIR 1976 Kant 146) that the onus of establishing that the owner of the insured vehicle has violated the term of the policy prohibiting the driving of the vehicle by an unlicensed or unauthorised person is on the insurer. The proposition is reiterated in M. Subramanya. Bhat v. Govindaraju, . Hence, we have no hesitation to hold that the onus of proving any breach of condition in the policy is on the insurer and not on the claimant or owner of the vehicle. We are further supported in our view by a ncerit authoritative decision of the Supreme Court in the case, Bishan Devi .v. Sirbaksh Singh, (AIEL 1979 SC 1862) wherein his Lordship Justice Kailasam who spoke for the Bench has observed (at pp. 1865-1866 of AIR):
"Under Section % (2) (b) . (ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed ... ... . . ... It is the duty of the insurer to have substantiated the plea On an appreciation of the entire evidence placed before the Court, we are satisfied that the Insurance Company has failed to establish satisfactorily that the driver of the scooter had no driving licence on the date of the accident.
13. In the result, therefore, the appeal fails and is dismissed.
14. In the peculiar circumstances of the case, we make no order as to costs..
15. Appeal dismissed.