IMPORTANT POINTS
Onus primarily lies on the owner of the vehicle to establish that the driver was authorized by him to drive the vehicle and he had valid driving licence. Then only the onus shifts to the insurer to rebut the same. If the driver is not authorised or does not have valid licence, the insurer will not be liable to pay compensation.
Even if insurer is absolved of the liability to pay compensation, it can be directed to pay the same and recover from the owner.

JUDGMENT

A.M. Khanwilkar, J.

1. This appeal questions the legality and tenability of the judgment of the High Court of Judicature at Allahabad in First Appeal from Order No.1138 of 2000, dated 9th October, 2014, whereby the appeal filed by the appellants was dismissed by the High Court whilst rejecting the only question raised before it regarding absolving the Insurance Company (Respondent No.2) from any liability in respect of truck bearing No.DIL-5955, which was duly insured by respondent No.2 Insurance Company, on the ground that the same was not driven by a person having a valid licence, as found by the Motor Accident Claims Tribunal, District Allahabad in Claim Petition No.215 of 1999.

2. In the claim petition it was asserted that on 12.08.1995 Om Prakash, son of Satku Lal, was driving Truck No.URS-2735 when it was knocked down by a rashly and negligently driven Truck No.DIL-5955 coming from the opposite direction, as a result of which Om Prakash succumbed to fatal injuries. The claim petition was filed by the widow of deceased Om Prakash. Om Prakash left behind his children Pappu, aged 16 years, Ramu, 12 years, Kumari Geeta, 14 years, Kumari Neetu, 10 years, Kumari Guriya, 8 years and his mother, Smt. Shiv Rani, at the time of the accident. The widow of deceased Om Prakash claimed compensation of Rs.7 lakh under Fault Liability and Rs.25,000/-under No Fault Liability. The mother of Om Prakash claimed compensation of Rs.50,000/-separately. On the date of the accident, Om Prakash was around 35 years of age and was a driver by profession.

3. In the context of the sole contention raised before the High Court and reiterated before this Court, it is not necessary for us to dilate on factual aspects considered by the Tribunal except to state that the Tribunal, on analysis of the evidence on record, held that Om Prakash died because of the accident caused by rash and negligent driving of Truck No.DIL-5955. Although the Tribunal allowed the claim petition in part, it absolved respondent No.2 Insurance Company by dismissing the claim petition against the said respondent. The Tribunal awarded a sum of Rs.25,000/-to opposite party No.3 Shiv Rani and Rs.1,75,000/-to claimant Nos.1 to 6, with interest at the rate of 12% per annum from the date of petition till the date of payment. In other words, the claim petition was partly allowed against respondent No.1 -the owner of the offending vehicle DIL-5955.

4. In the appeal preferred by the appellants/claimants against the said decision, the only question urged before the High Court was about the correctness of the view taken by the Tribunal in absolving the respondent No.2 Insurance Company even though the offending Truck No.DIL-5955 was duly insured by the said Insurance Company. The High Court affirmed the view taken by the Tribunal that there was no pleading or any evidence adduced by the owner of the offending Truck to substantiate the fact that the Truck was driven by one Joginder Singh, whose driving licence was produced on record. The High Court also noted that there could be no presumption that Joginder Singh was driving the offending vehicle. The appellants have assailed the aforesaid view taken by the Tribunal and affirmed by the High Court.

5. According to the appellants, the Insurance Company did not produce any evidence before the Tribunal. As a result, it was not open to the respondent No.2 Insurance Company to extricate itself from the liability, having duly insured the offending vehicle DIL-5955, which fact has been substantiated by production of the Insurance Policy. A defence being available to the Insurance Company, that the offending vehicle was not driven by an authorised person and/or person not having a valid driving licence, it was obligatory on the part of the Insurance Company to substantiate that defence and more so, to rebut the plea taken by the owner of the offending vehicle that the offending vehicle was being driven by an authorised person having a valid dr