Rajesh Tandon, J.
1.Heard the learned counsel for the parties.
2. All appeals have been filed against a common judgment and award dated 1.8.1995 passed by the Motor Accidents Claims Tribunal, Tehri Garhwal.
3. Briefly stated the facts giving rise to the present appeals are that respondents-claimants have filed as many as 21 claim petitions registered as M.A.C. Case Nos. 10 to 31 of 1989 for grant of compensation on account of injuries sustained by the claimants and also on account of death of some of the passengers travelling by bus No. URM 8612 involved in the accident. Petitioners have alleged that on 30.11.1988 bus No. URM 8612 was started from Moridhar for going to Uttarkashi. The bus was carrying a marriage party. At about 2.15 p.m. when the bus reached near Jadipani, it met with accident and rolled into a khad. All the passengers travelling by the bus sustained injuries in the accident out of which five passengers succumbed to the injuries sustained. The owner of the bus was Rukamani Devi and the bus was comprehensively insured with the appellant. The claimants have stated that the accident took place due to rash and negligent driving by the bus driver.
4. Opposite parties have contested the claim petitions. They denied that the accident took place due to rash and negligent driving. Their version of the accident is that the accident took place due to failure of brakes and steering.
5. On the basis of contentions of the parties the following four issues were framed:
(1) Whether the accident in question took place due to rash and negligent driving of vehicle No. URM 8612 resulting in the death of Ram Chandra?
(2) Whether the vehicle in question was being driven in violation of the terms of the policy at the time of accident as alleged by the insurance company?
(3) Whether the vehicle in question was being driven without a valid driving licence at the time of accident?
(4) Relief?
6. On the basis of the ocular testimony of witnesses Dodha and Parush Ram the Claims Tribunal has held that the accident occurred due to rash and negligent driving by the driver of the bus No. URM 8612. In reply of issue No. 2 Claims Tribunal has held that neither the bus was overloaded nor the driver or the owner of the bus have violated the terms and conditions of the insurance policy. Copy of the driving licence has been filed by the driver which is valid.
7. The Claims Tribunal awarded a compensation of Rs. 90,000 in Siradevi v. Rukamani Case No. 10 of 1989; a sum of Rs. 90,000 in Usha Devi v. Rukamani, Case No. 11 of 1989; Rs. 10,000 in Devendra Singh v. Rukamani, Case No. 12 of 1989; Rs. 10,000 in Surat Singh v. Rai Singh Case No. 13 of 1989; Rs. 5,000 in Rajendra v. Rai Singh Case No. 14 of 1989; Rs. 5,000 in Parush Ram v. Rai Singh Case No. 15 of 1989; Rs. 10,000 in Jai Prakash v. Rai Singh Case No. 16 of 1989; Rs. 15,000 in Shadi Ram v. Rai Singh Case No. 17 of 1989; Rs. 6,000 in Shiv Ram v. Rai Singh Case No. 18 of 1989; Rs. 12,000 in Pratap Singh v. Rai Singh Case No. 19 of 1989; Rs. 36,000 in Rajani v. Rai Singh Case No. 20 of 1989; Rs. 36,000 in Inder Singh v. Rai Singh Case No. 21 of 1989; Rs. 36,000 in Rajendra Singh v. Rai Singh Case No. 22 of 1989; Rs. 10,000 in Prem Singh v. Rai Singh Case No. 23 of 1989; Rs. 5,000 in Case No. 24 of 1989; Rs. 10,000 in Ram Prakash v. Rai Singh Case No. 26 of 1989; Rs. 10,000 in Girdhari v. Rai Singh Case No. 28 of 1989; Rs. 8,000 in Dhanram v. Rai Singh Case No. 29 of 1989; Rs. 5,000 in Asha Ram v. Rai Singh Case No. 30 of 1989 and Rs. 10,000 in Todha v. Rai Singh Case No. 31 of 1989.
8. Aggrieved by the judgment and award Oriental Insurance Co. Ltd. has preferred the present appeals.
9. In Oriental Insurance Co. Ltd. v. Surat Singh Appeal No. 348 of 2001; Oriental Insurance Co. Ltd. v. Rajendra Prasad A.O. No. 1595 of 2001; Oriental Insurance Co. Ltd. v. Parush Ram A.O. No. 347 of 2001; Oriental Insurance Co. Ltd. v. Shiv Ram A.O. No. 1593 of 2001; Oriental Insurance Co. Ltd. v. Bhaj Ram A.O. No. 352 of 2001; Oriental Insurance Co. Ltd. v. Dhan Ram A.O. No. 355 of 2001 and Oriental Insurance Co.'Ltd. v. Asha Ram A.O. No. 337 of 2001, the amount of award is less than Rs. 10,000 and as such no appeal can be preferred in view of the provision made under Section 173(2) of the Motor Vehicles Act and as such all these appeals are dismissed as not maintainable.
10. So far as the other appeals are concerned, it has been contended by learned Counsel for the appellant that owner and driver of the bus have flouted the terms and conditions of the insurance policy. It was further contended that the driver of the bus has no valid driving licence.
11. The issues of violation of terms and conditions of insurance policy and that the driver of the bus have no valid driving licence have been raised by the appellant-respondent. Therefore, the burden of proof lies upon the insurance company. Learned Claims Tribunal framed issues on both these points but the appellant has not lead any evidence in this connection. The driver of the bus has produced a copy of driving licence before the Claims Tribunal and the Claims Tribunal found that the driving licence was valid and genuine. However, if the owner of the vehicle has flouted the terms and conditions of insurance policy or the driver has no valid driving licence, the liability of the insurance company towards the third party does not get avoided. The insurance company on proof that owner of vehicle was aware of fact that licence was fake, can however, recover the amount from the insured. As held by the Supreme Court in the case of United India Insurance Co. Ltd. v. Lehru 2003 ACJ 611 (SC), as under:
Now, let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen in order to avoid liability under this provision it must be shown that there is a breach. As held in Skandia's case 1987 ACJ 411 (SC) and Sohan Lal Passi's case 1996 ACJ 1044 (SC), the breach must be on part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the insurance company disown liability? The answer has to be an emphatic 'No'. To hold otherwise would be to negate the very purpose of the compulsory insurance. The injured or relatives of person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the legislature, in its wisdom, has made insurance, at least third party insurance compulsory. The aim and purpose being that an insurance company would be available to pay. The business of the company is of insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer a loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases, viz., that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured.
12. The Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), has held as under:
(102) The summary of our findings to the various issues as raised in these petitions are as follows:
xxx xxx xxx(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured of the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
13. However, in the present appeals the insurance company has utterly failed to establish that the owner and driver of the vehicle met with accident have flouted the terms and conditions of the insurance policy and as such the appellant is not entitled to recover the amount of compensation from the insured, i.e., the owner of the vehicle.
14. The appellant has also raised point that at the time of accident the bus was overloaded and the passengers travelling by the bus at the time of accident were more than the sanctioned strength of the bus. The learned Claims Tribunal has held that the accident was caused due to rash and negligent driving of the bus in question and it was not due to overloading of the bus. The bus was comprehensively insured with the appellant for third party insurance and the appellant was bound to pay compensation to the passengers travelling by the bus.
15. In view of the above, the appeals have no merit and all the appeals are hereby dismissed with costs.