Judgment:
A.G. Qureshi, J.
1. This appeal is filed against the award dated. 27.8.81 passed by the Member, Motor Accidents Claims Tribunal, Indore in Claim Case No. 85 of 78.
2. The fact leading to this appeal, in short, are that the non-applicant/appellant was the owner of scooter CPE 3274. On 12.3.1978, the aforesaid scooter was given by non-applicant No. 1 to non-applicant No. 2 for driving it during the course of the employment, because non-applicant No. 2 was in the employment of non-applicant No. 1 on that date. The aforesaid scooter was insured with non-applicant No. 3 Insurance Company. According to the respondent-claimant, on 12.3.1978 she had gone with her parents to the house of one Ratnalal who is related to the claimant. At 2.p.m. she went to the other side of the road of the house of Ratanlal for drinking water and after drinking water from the water tapp when she was standing by the side of the road, the non-applicant No. 2 reached there driving the scooter in question in a rash and negligent manner and dashed the scooter against the claimant-respondent. As a result of the dash the claimant fell on the road and the wheels of the scooter passed over the right leg of the claimant. The scooter could not be stopped because of excessive speed, but it stopped at a distance of fifty steps. Due to the accident the non-applicant received injuries and she was admitted to M.Y. Hospital for five days and a plaster was applied on her right leg. As a result of the injury she sustained permanent disability and she had to incur heavy expenditure for her treatment. Therefore, she claimed Rs. 25,000/- by way of compensation from the non-applicants.
3. Denying the aforesaid allegation, non-applicant No.1 averred that the scooter was insured with the Insurance Company. The Insurance Company is liable to pay the compensation if the claimant is held to be entitled to any compensation. The non-applicant No.2 while denying the allegations made by the claimant averred that the claimant was playing on the road with other children. At that time the non-applicant No. 2 reached there driving the scooter at a slow speed, When the non-applicant No. 2 reached the office of Shri. R.C. Pande, Advocate the claimant came running all of a sudden in front of the scooter and as such he was responsible for the accident, she being negligent in herself dashing against the scooter. The non-applicant No. 3, Insurance company, inter alia took a plea that the non-applicant No.2 had no driving licence to drive the scooter and as such the Insurance Company is not liable to pay any compensation.
4. The learned lower Tribunal, after framing the issues, held that the accident was caused due to the rash and negligent driving of the scooter by the non-applicant No. 2 and that as a result of the accident claimant Kanta received serious injuries. Consequently, she also could not appear in her examination. It was also found that she had sustained permanent injury and, therefore, she is entitled to get compensation of Rs. 17,000/-. However, it was held that as the non-applicant No.2 had no driving licence to drive the scooter at the relevant time, the Insurance Company was absolved of the liability to pay any compensation in view of the provisions contained in Section 96(2) of the Motor Vehicles Act. Aggrieved by the aforesaid award, the non-applicant No.2 had filed this appeal.
5. The only point argued before me by the learned Counsel for the appellant Shri. Siddiqui is that the learned lower Tribunal has erred in absolving the Insurance Company by holding that the non-applicant No. 2 had no driving license at the time of the accident. According to Shri. Siddiqui the lower Tribunal has erred in shifting the onus on the driver to prove that he had a valid license. Actually it was for the Insurance Company to prove that the non-applicant No.2 had no valid driving license.
6. On the other hand, the learned Counsel for the Insurance Company Shri. Dandwate strenuously argues that the lower Tribunal has rightly held that it was for the non-applicant No. 2 to produce the licence. Despite repeated attempts by the court the non-applicant No. 2 did not produce any license. Therefore, the adverse inference against the non-applicant No. 2 has rightly been drawn by the lower Tribunal.
7. In my opinion the approach of the learned lower Tribunal in drawing an adverse inference against the non-applicant No. 2 is clearly erroneous in view of the fact that whenever the Insurance Company takes a pleas that the driver of the accident vehicle was not holding a valid license at the time of the accident, it is for the Insurance Company to prove that fact by bringing the relevant documents i.e. the extracts from the R.T.A or a certificate to the effect that the person driving the vehicle at the time of the accident was not issued a license at all. The Supreme Court in the case of Narcinya v. Kamat and Anr. v. Aiferedo Antonio Deo Martins and Ors. 1985 ACJ 1397 has held that whenever. The Insurance Company pleads a breach of the condition of the policy by pleading that the driver had no driving license at the time of the accident the onus is on the Insurance Company to prove that fact. The Insurance Company cannot contend that only because the driver failed to produce the license when asked to do so in the cross-examination, an adverse inference should be drawn against the driver. The onus is always on the Insurance Company to prove that the driver had no driving license to scapeliability. Mere non-production of the license by the driver does not exonerate the Insurance Company. Therefore, the Insurance Company was held liable to indemnify the award. The driver is under no obligation to furnish evidence so as to enable the Insurance Company to wriggle out of its liability under the contract of insurance. Further the R.T.A. which issues the driving licences and renewed by it. The Insurance Company could have got the evidence produced to substantiate its allegation. The Supreme Court applying the aforesaid test has held that in the absence of the evidence about the non-holding of license by the driver it is the Insurance Company, which has to fail.
8. The Rajasthan High Court in the case of Rajasthan State Co-Operative Daily Federation v. Brij Mohan Lal and Ors. has also followed the aforesaid Supreme Court Authority to hold that the onus to prove that the driver had no license is on the insurance company. This court also has taken a similar view in the case of Karan Singh v. Manohar lal and Ors. 1989 ACJ 177. In view of the aforesaid Supreme Court authority and the decisions of this Court and the Rajasthan High Court, the contention of Shri. Dandwate has no force when he argues that despite a notice of the court to produce the license, the driver failed to produce the license, therefore, the adverse inference against the driver of not holding the license has rightly been drawn.
9. In view of the aforesaid the appeal filed by the appellant is allowed. The impugned award to the extent of absolving the respondent No. 3 Insurance Company from the liability to set aside and instead it is held that the Insurance Company is liable to indemnify the appellant and respondent No. 2 for the damages awarded to respondent No. 1 by the lower Tribunal. As a result, the appellant and respondents Nos. 2 and 4 are held liable to pay the compensation amount to the respondent No. 1 claimant Kanta. A modified award be prepared accordingly. There shall, however, be no order to costs.