Ruby General Insurance Co. Ltd. vs Kesharbai and Others

B.R. Dubey, J.—This is an appeal by the insurer, Ruby General Insurance Co. Ltd., Calcutta, having its branch office at Indore, against the award of compensation made by the Motor Accidents Claims Tribunal, Mandleshwar, in claim case No. 8 of 1969.

The Respondent No. 2 is the owner of truck No. M.P.O. 1873 and Respondent No. 3 was the driver of the said truck and in service of Respondent No. 2 on 19-8-69 when the accident took place on Burwaha-Indore road in which Rupchand, the husband of Respondent No. i, died The said Respondent No. 1 as a legal representative of the deceased claimed compensation amounting Rs. 50,000/. The Respondent No. 3 remained absent and the case proceeded exparte against him. The claim was contested by Respondent No. 2, the truck owner and the Appellant, the insurer. The defence of the Appellant was that Respondent No. 3 the driver had no driving licence and hence the Appellant as an insurer was not liable for compensation.

The Claims Tribunal found that the driver, Respondent No. 3 drove the truck negligently and dashed it against Rupchand on account of which he died, that the Appellant failed to prove that Respondent No. 3, was driving the truck without license and hence it was liable to pay compensation. The Claims Tribunal determined lump sum compensation at Rs. 10,320/- and held the Appellant, the Respondent No. 3 liable to pay the same to the Respondent No. 1. Against the said award the Appellant has come to this Court in appeal.

It is not disputed that the truck involved in the said accident was insured with the Appellant. The Appellant wanted to get out of the liability to pay the compensation only on the ground that the Respondent No. 3, the driver, did not hold any driving license and hence under the conditions of the policy the Appellant was not liable to pay the compensation. The Appellant did not lead any evidence to prove that the driver of the truck had no driving license. The Appellant''s witness Surendra Singh (N.A.W. 1), who is the office Superintendent in the Appellant company, has simply stated that the company did not pay for the damage of the truck because the driving licence was not produced. That does not mean that the driver had no license. Moreover the Appellant did not prove by legal evidence the alleged term of the policy that it shall not be liable to pay compensation in case the truck was driven by a driver without holding a license. As admittedly the Appellant is the insurer of truck, it cannot escape the liability to pay compensation without establishing the fact that under the contract it was not liable to indemnify the insured for compensation arising out of the fatal accident.

The learned Counsel for the Appellant placed reliance on the Division Bench decision of this Court in The Anand Insurance Company Ltd. Vs. Hasanali and Others, in which it was held that in a case where the Insurance Company specifically pleaded that the driver of the truck had no driving license to drive, the burden of proof was on the driver to produce the license before the Court and not on the Insurance Company. In our opinion, the said decision is distinguishable on facts. In the instant case the driver did not appear before the Claims Tribunal and the proceedings continued exparte against him. Moreover in the case of The Anand Insurance Co. Ltd. (supra) the term of the policy was proved, that the insured would not be indemnified if the vehicle was driver otherwise than in accordance with the schedule which provided for use of vehicle by a driver holding license for driving the vehicle. As already held above, in instant case no such term of the policy has been proved in accordance with law.

The Appellant as an insurer cannot challenge the finding of the Claims Tribunal with respect to the negligence of the driver in driving the truck. The owner and the driver having not come in appeal against the award of compensation, the quantum of compensation also cannot be assailed.

In the result this appeal having got no substance fails and it is hereby dismissed with costs. Counsel''s fee Rs. 1000/- if certified.