Judgment:
M.S. Liberhan and Surinder Singh, JJ.
1. The only contention pressed before us is that the driver of the truck would be only liable for the compensation. The insurance company specifically took the plea that the driver did not have a valid driving licence. He neither appeared in the witness box nor tendered or produced his driving licence on record. The claimants too did not produce any evidence of the driver's having a valid driving licence. Learned counsel for the appellant further argued that Court has erred in not inferring by raising presumption in the facts and circumstances that the driver was not holding a valid driving licence at the time of accident. The learned counsel for the appellant relied on M/s New India AssuranceCo. Ltd. v. Surinder Paul and Ors., (1990-1)97 P.L.R. 318.
2. The Motor Accident Claims Tribunal framed an issue to the effect 'Whether respondent No. 1 was not holding a valid driving licence?' and found after relying on the ratio of Supreme Court's judgment in Narcinva V. Kamat and Anr. v. Alfredo Antonio Dee Martins and Ors., 1985 ACJ 397 that as the insurance company failed to lead any evidence in support of the issue, resultantly the same is decided against the Company.
3. In Surinder Paul's case (supra), Single Bench of this Court observed, after noticing the fact that the alleged driver of the tractor trolley was not having right arm and was not capable of driving the tractor, that the denial of Gurmukh Singh is not convincing. It was further noticed that the driver himself appeared in the witness box and considered himself incapable of driving the tractor but still he did so. In view, of the facts noticed, while determining the question whether the insurance Company could be held liable when the driver did not possess a driving licence, the Court observed that since the insurance company specifically pleaded that the driver was not authorised to drive the vehicle as he had no driving licence, it was for the driver to produce the licence. It relied on Shri Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co., A.I.R. 1989 Supreme Court 2002:
4. Apart from the fact that the judgment is not applicable to the facts found in the present case, the question of law laid down by this judgment runs counter to the law laid down by Hon'ble the Supreme Court in Shri Kashiram Yadav's case (supra). In Narchinva v. Kamat's case (supra) it was noticed as a fact that a question was posed to the driver 'whether he would produce his driving licence:' he failed to produce the same. It was in these circumstances that as argument was advanced that since he could not produce the driving licence, an adverse inference must be drawn against him, that he did not have a valid driving licence. The Hon'ble Supreme Court further observed, while answering the question whether the driver had a valid driving licence, that 'the burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it, by a mere question in cross-examianation. The seeoad appellant was under no obligation company to wriggle out of its liability under the contract of insurance. Further the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegations. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company.'
5. Even in Shri Kashiram Yadav and Anr. v. Oriental Fire and General Insurance Co. and Ors., J.T. 1989 (3) S.C. 504: 1989 S.C. 2002, after noticing the fact there was a condition in the policy that the vehicle should not be driven by any person not duly licenced or disqualified for holding the same daring and on the date of disqualification. Hon'ble the Supreme Court relying on the ratio of the judgment in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and Ors., (1987-1) P.L.R. 665 (S.C.) observed as under-
' This Court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could not be said to have committed breach of the conditions of the policy. It must be established by the insurance Company that breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licenced driver and has placed the vehicle in his charge with the express or implied mandate to driver himself, it cannot be said that the insured is guilty of any breach'
6. In our view, in view of the law laid down by the apex Court that it is for the insurance company to prove the breach of the conditions, the onus of proving the same lays on the insurance Company cannot be inferred that the vehicle was not being driven by the duly licenced driver. The onus of proving the same continues on the company, though the burden of proof may shift in the facts and circumstances of each case. No law in general terms can be laid down that non-production of the driving licence or non production of any evidence of having a valid driving licence would automatically result in a presumption of the vehicle being driven by a unqualified driver. We are further of the considered view that in view of the facts in the present case the burden of proof was on the insurance company which led no evidence to discharge that burden. During the course of arguments also nothing has been pointed out to show that the insurance company had led any evidence to discharge that burden. Thus, in our considered opinion, the finding of the Motor Accident Claims Tribunal against the insurance company cannot be interfered with. With respect we cannot agree with the law laid down by the Single Bench in Surinder Paul's case (supra) and the same cannot be permitted to hold good, and is, therefore, overruled.
7. In view of the observations made above, we find no force in this appeal and the same is dismissed.