A.K. Thaga Pillai (died) and 7 others vs Meenakshi and 8 others

Judgment pronounced by R. Jayasimha Babu, J.—These appeals arise out of the proceedings initiated before the Motor Accident Claims

Tribunal, Cuddalore, in respect of the claims made by one victim and by the heirs of the another the injuries for the leading to the claims having

resulted from an accident which had occurred on 4.1.1981 on the Kallakurichi, Thiagadurgam Road, by reason of the tractor MTF 5767 colliding

with the Trailor MTF 6658,. The Tribunal held that the accident was due to the rash and negligent driving of the tractor by the driver. While

holding the owner liable, the insurer was exonerated on the ground that there was no evidence to show that the driver held a valid driving licence at

the time of accident.

Against this finding of the Tribunal, two C.M.As. were filed in this Court, the CMAs. being 320 of 1983 and 527 of 1990. In CMA 320 of

1983 it was held by the learned single Judge that the finding of the Tribunal reversing to finding in so far as the liability of the insurer was

concerned, that the failure on the part of the insurer to produce the policy disentitled the insurer to claim that it''s liability if any on account of the

rash and negligent driving of the vehicle by the driving of the person who did not have a driving licence, could not be claimed as there was no

presumption that every situation from which the insurer under the Motor Vehicles Act in law can protect itself by excluding the liability therefore in

the policy, had in fact been set out in the policy actually issued. L.P.A.No.65 of 1991 has been filed by the insurer against that Judgment of the

learned single Judge.

In C.M.A.527 of 1990, the amount awarded by way of compensation being over a lakh of rupees, that appeal has come directly before us. The

contentions urged in respect of that appeal are the same as the one that prevailed before the learned single Judge who decided the C.M.A.320 of

1983. C.M.A. as also L.P.A. have been heard together and are being disposed of by this common order.

Having perused the Judgment of the learned single Judge of this court in A.A.O No. 320 of 1983, we are in complete agreement with what has

been stated by the learned single Judge in paragraphs 8 to 11 of her Judgment. After referring to the case of National Insurance Co. Ltd., New

Delhi Vs. Jugal Kishore and Others, as also the judgments rendered by several other High Courts, the learned single Judge held that in the absence

of a policy, it is not known as to whether there was any exclusion clause relating to the driver not having a licence for that particular kind of vehicle.

It is also observed that S. 96(2) (b) (ii) of the Motor Vehicles Act contains a number of contingencies which could form part of the insurance

policy with reference to the driving licence possessed by the driver of the vehicle. As to whether that requirement had been incorporated in the

policy that was issued to the owner of the tractor involved in the accident is not known as the policy itself has not been placed before the Court.

It is the duty of the insurer to produce the policy when the fact of having issued the policy is not in dispute and the defence raised by the insurer

is based upon the exclusion clause in the policy. It is not enough for the insurer to rely on the provisions of the Motor Vehicles Act which would

enable the insurer to exclude certain contingencies from the scope of its liability. What is required to be demonstrated by the insurer is that the

option given by the Act to the insurer to exclude the liability in certain situations has in feet been availed by it by incorporating appropriate clauses

in the policy issued to the owner of the vehicle. The failure on the part of the insurer to produce the policy even in this Court has resulted in the

insurer not being able to rely on the defence raised by it.

In the result L.P.A.No.65 of 1991 is dismissed. C.M.A.No.527 of 1990 is allowed. The insurer shall be liable to pay the amount awarded by

the Tribunal.

The claimants before the Tribunal have received the amounts awarded by the Tribunal from the owner of the vehicle. The statement to that effect

was mode before us by the learned counsel for the claimants. That was also the submission by the counsel for the owner. The insurer therefore will

now have to reimburse the owner to the extent of the amount paid by the owner to the claimants.