M.M. Kumar, J.
1. Insurance Company is in appeal against the award dated 10.11.2005 where the claimant-respondent is round to nave suffered 100 per cent disability. The Tribunal has found it as a fact that on 5.6.1999 at about 6.10 A.M. the accident has been caused by rash and negligent driving of Tata Sumo by its driver Amrik Singh (respondent No.2). The claimant-respondent No. l Ashwinder was 19 years old at the time of accident. The claimant-respondent has suffered 100% disabi!ity (Ex.P.22) and he had qualified first semester of Bachelor of Computer Application Course (BCA). However, on account of accident he was not able to qualify IInd, IIIrd and IVth semesters. The anticipated income of the claimant-respondent has been considered to be Rs. 4500/- p.m. and multiplier of sixteen has been applied 4500 x 12 x 16 = 8,64,000). It has been found that on account of the 100 per cent disability the claimant-respondent was entitled to the following amount:
(a) Disability qua whole body to the extent Rs. 8,64,000/-of 100 %(b) For attendant charges Rs. 18,000/-(c) For medical treatment Rs. 63,000/-(d) Additional amount for medical treatment Rs. 30,000/-(e) Special diet Rs. 20,000/-(f) Pain and Sufferings Rs 40,000/-TOTAL Rs.10,35,000/-
2. The validity of driving licence or its forgery was an issue raised by the Appellant-insurance company. As no evidence was adduced the Tribunal decided issue No. 3 against the Appellant-insurance company by observing as follows:
The onus to prove this issue was upon the respondent No. 3. Respondent No. 3, has, however, failed to prove this issue. The Insurance Company should have summoned the driver to give the number of driving licence. In the absence of the same, issue No. 3 is decided against respondent No.3 and in favour of the claimant. However, in view of the law laid down in the authority titled as United India Insurance Co. v. Surjit Singh and Ors. (2001-2)128 P.L.R. 42, if the owner of the vehicle has committed breach of condition by employing a person who was not holding a valid driving licence, then in such a case, rights of third party cannot be taken away on the ground that owner of the vehicle has not employed a person with a good/valid driving licence, the insured may reimburse the Insurance Company.
3. We have heard Mr. Vinod Chaudhary, learned Counsel for the appellant-insurance company who has argued that the insurance company could not have taken any step for proving the absence or otherwise invalidity of the driving licence and therefore, the driver and the owner should not have been absolved. The liability could not be fastened on the appellant-insurance company. According to the learned Counsel the onus to prove the validity of the driving licence should have been put on the driver-respondent No. 2 or the owner respondent No. 3.
4. Having heard the learned Counsel we are of the view that this appeal does not deserve to be admitted because the Tribunal after recording the finding that the accident had taken place on 5.6.1999 at about 6.10. A.M. and the offending vehicle was being driven by respondent No. 2 in a rash and negligent manner. The offending vehicle had caused accident which resulted in multiple injuries on the person of the claimant-respondent. The claimant has been found to be 19 years of age and had suffered 100% disability with respect to the whole body. His anticipated income has been found to be Rs. 45007- and a multiplier of 16 has been rightly applied. The compensation awarded under the various heads is also not on the higher side and therefore, the same deserves to be upheld.
5. The argument of the learned Counsel that the onus to prove forgery of the driving licence or its validity should have been placed on the claimant-respondent or the owner/driver, would not require any detailed consideration firstly because no objection has been raised with regard to the placing of onus nor any argument in that regard was advanced before the Tribunal. Secondly, the onus to prove the plea cannot be said to have been placed on it incorrectly. The appellant-insurance company could have easily summoned the driver and the owner to ascertain the validity of the driving licence. Even before this Court no application for additional evidence has been filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908. Therefore, we are not impressed with the argument that the driving licence was forged or invalid. Even otherwise the insurance company cannot avoid its liability especially n view of the law laid down by the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. (2004-1)136 P.L.R. 510 (S.C.) and Punam Devi v. Divisional Manager, New India Assurance Company Ltd. (2004-2)137 P.L.R. 295 (S.C.). In Swaran Singh's case (supra), the Hon'ble Supreme Court has observed as under:
The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149 has 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 or the third party. To avoid its liability towards the 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 conditions of the policy regrading use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
6. The a fore-mentioned dictum has b een followed, b y their Lordships i n Punam Devi's case (supra). The principles laid down in the afore-mentioned judgments leave no manner of doubt that under Section 149(2)(ii) of the Act the disqualification of the driver or invalidity of driving licence was required to be proved by the insurer to avoid liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver at the relevant time are not in themselves defences available to the insurer against the insured or a third party. The insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of the vehicle by the duly licensed driver or one who was not disqualified to drive at the relevant time. The insurance company having failed to discharge the onus, as laid down in the afore-mentioned judgments, cannot avoid its liability towards third party and therefore, the award has to be upheld.
For the reasons afore-mentioned, this appeal fails and the same is dismissed.