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Judgment
This appeal is directed against the award of the Motor Accident Claims Tribunal in M.C.O.P.No.463 of 1990. The Insurance Company is the
appellant in the above appeal.
According to the claimant, the accident took place near Natarajapuram on 5.3.1990 at about 7.00 hours. At the place of occurrence, the road
runs East to West. He was riding his cycle and was proceeding towards Ariyur from Siruvathaiyur, namely from West to East keeping to his left
and by observing the rules of road. When he was nearing Natrajapuram, the vehicle bearing registration No.T.D.O.9781 (motor cycle) belonging
to the first respondent and insured with the second respondent, was being driven by its driver in a very rash and negligent manner in a high speed.
It was coming on the opposite direction, namely, from East to West. As a result of the rash and negligent manner of driving, the driver lost control
over his vehicle and as a consequence it dashed against the petitioner''s cycle. As a result of the impact, the petitioner was thrown out and
sustained multiple injuries all over his body. His right leg was fractured and the cycle was also damaged. The accident resulted only as a result of
the negligent driving of the first respondent driver. A total sum of Rs.1,00,000 was claimed as compensation.
In the written statement filed by the first respondent, the owner of the vehicle, it was contended that he has already sold the vehicle as early as
4.9.1989 to one Rathinasabapathy. The delivery note was filed along with the written statement. From that day onwards, Rathinasabapathy alone
was the owner and not this respondent. This fact was also intimated to the second respondent Insurance Company. The petitioner must be
directed to implead the said Rathinasabapathy as a party. This respondent was unnecessary party to the petition.
In the counter filed by the second respondent, Insurance Company it was stated that the fact that the driver of the vehicle G.Raja had valid
licence to drive the same, should be proved accordingly. The earnings as claimed by the claimant was also disputed. The claim of compensation at
Rs.1,00,000 was highly excessive and exhorbitant.
On a consideration of the said pleadings and evidence, the Tribunal held that the accident had occurred only as a result of rash and negligent
driving of the motor cycle. A sum of Rs.22,000 was fixed as compensation. Hence, the present appeal by the Insurance Company.
The Insurance company is questioning its liability only on the ground that the driver of the vehicle namely, Raja had no valid driving licence. The
insurance Company had marked Ex.R.2, the driving licence as evidence. The licence does not have any endorsement entitling the licence holder to
drive two wheelers. R.W.2, an Inspector from the Regional Transport Office was also examined. R.W.2 has deposed that there was no
endorsement for driving two wheelers in favour of the said Raja nor any separate licence had been issued.
However the Tribunal held that the Insurance company had not properly discharged its burden of proof as regards whether -the driver had
proper licence or not.
The learned counsel for the appellant states that the burden of proof has been sufficiently discharged by the Insurance company by producing
the licence as well as examining the competent official from the Regional Transport Office and it is clearly established that there is neither any
endorsement nor any fresh licence in favour of the driver entitling him to drive the vehicle. Therefore, the Tribunal was in error in holding the
Insurance company liable.
The learned counsel also relies on the judgment of this court in C.M.A.No.312 of 1989 delivered in March 1998.
10 The learned counsel for the respondent contends that it is not sufficient for the Insurance Company merely to produce the copy of the licence or
to examine an official from the Regional Transport Office and it is not proper discharge of the burden of proof on the part of the Insurance
company.
Reliance is placed on the judgment of Gujarat High Court reported in United India Insurance Co. Ltd. Vs. Desai Babarbhai Maneklal and
Others, . In that case, the driver did not produce the driving licence despite notice was served on him by the Insurance Company. It was held that
the claimant was not responsible for the non production of the driving licence.
Reliance is also placed on the judgment of Madhya Pradesh reported in New India Assurance Co. Ltd., Gwalior Vs. Ratanlal and Others, .
Reliance is placed on the observation that failure to produce Insurance policy, would disable the Insurance Company from raising any of the
defences.
A reference is made to the judgment of the Supreme court reported in Narcinva V.Kamat and another v. Alfredo Antonio Doe Martins and
others 1985 A.C.J. 397. That was a case in which the question of proof of driving licence arose and the company contended that the driver did
not have a valid driving licence at the time of the accident as the driver failed to produce the licence when he was asked to do so. Except this no
further evidence was let in by the Insurance Company to substantiate its contention. In the said situation, the Supreme Court held that the onus was
on the Insurance Company to prove that the driver had no valid driving licence and the mere circumstances that the driver did not produce the
licence will not exonerate the Insurance company. The facts stated above clearly show that the Supreme Court was dealing with a case where no
licence was produced and no further materials were produced by the Insurance Company. In the present case, the Insurance Company has taken
pains to produce licence of the driver who is alleged to have driven the vehicle and also examined an officer from the Regional Transport Office.
The said witness has also deposed that there is no endorsement or issuance of any licence in favour of the driver. Therefore, the facts relating to the
judgment of the Supreme Court have no application to the present case.
Further reliance is also placed on the judgment of the Division Bench of this court reported in National Insurance Co. Ltd., Tiruchirapalli v.
Sugantha Kunthalambal and others, 1981 A.C.J. 302. That was also a case in which the Insurance Company merely made an allegation that the
driver did not have a valid licence and it was held that the burden of proof is on the insurer to establish that the driver did not have a valid licence to
drive the vehicle.
Having regard to the facts and circumstances of this case, the Insurance Company having produced licence which does not disclose the
required endorsement, I am inclined to hold that the Insurance Company had discharged its burden. Apart from producing the licence, a staff of the
Regional Transport Office has also been examined to show that no endorsement has been granted by the office which had issued the licence. It is
impossible and unrealistic to expect anything more to be done by the Insurance Company. To expect the Insurance Company to verify from all the
Regional Transport Offices throughout the state or the country in order to establish that the driver had no licence, would be an impossible and
impractical expectation. It should be remembered that the Insurance Companies are Public Institutions and imposition of any unreasonable burden
of proof would only result in the claimants and the owner of the vehicles colluding together and placing the Insurance Company in a very impossible
situation. Such a situation cannot at all be appreciated. It has to borne in mind that under normal circumstances, it is for the person who claims to
have a valid licence to produce the same. Motor Vehicles Act imposes a duty on the Insurance Company to furnish sufficient material to show that
the driver has no proper licence, which burden would be discharged either by producing a licence which does not contain any endorsement to
drive a particular type of vehicle, or a report or an official witness from the local Regional Traffic Office. Therefore, I am unable to agree with the
findings of the Tribunal.
In the result, the appeal is allowed and the Insurance Company is absolved of its liability. The claimant is entitled to proceed against the owner
of the vehicle for the compensation. No costs.