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Andhra Pradesh High Court
Judges : N.V.RAMANA
New India Assurance Co.Ltd., Hyderabad - Appellant
Versus
Bollam Laxmi and Lachamma - Respondent
Decided On : 01-23-01
Held : According to the provisions of the Motor Vehicles Act and the Rules framed thereunder, the vehicle which does not exceed 7500 Kgs. unladen weight should be treated as light motor Vehicle. But, in this case, the appellant-Insurance Company did not adduce any evidence, muchless acceptable evidence, to establish the plea taken by it in the written statement that the offending motor vehicle (viz. , the lorry), is not a light motor vehicle7 and it is a "heavy goods vehicle , and hence the driver of the offending lorry is not eligible to drive the same.
The Insurance Company having taken a plea that the owner of the vehicle violated the policy conditions, i. e. , breach of contract, the burden of proof lies on it to establish the same. The contract of insurance is between the owner of the vehicle and the Insurance Company. The insurance Company has taken a plea that the owner of the vehicle violated the conditions of the policy, viz. , that the owner of the vehicle allowed a person (in this case, the driver of the offending lorry), who does not possess a valid licence to drive the vehicle, to drive the same. If the burden is not legally discharged by the Insurance company by adducing the necessary evidence, i. e. , by examining driver or owner or any other officer of the Motor Vehicles department, the Xerox copy of the driving licence filed by the claimants cannot be made use of by the Insurance Company and it cannot be said to be a sufficient material to come to the conclusion that the driver of the offending lorry does not possess a valid driving licence. The burden to prove that there is a breach of contract of insurance lies on the Insurance Company. The burden could not be said to have been discharged by the Insurance Company by merely relying on a document produced by the opposite party, i. e. , claimants/respondents- herein. To substantiate their stand, there is every opportunity given to the Insurance company. The Insurance Company could have adduced the necessary oral or documentary evidence to substantiate the pleas taken by it, atleast by examining the concerned Officers of the Transport department. A careful scrutiny of the evidence on record discloses that the insurance Company failed to establish the plea taken by it in the written statement by adducing any acceptable evidence that the driver does not have any valid licence beyond reasonable doubt. Therefore, it cannot now contend that there is a violation of conditions of policy by the owner of the lorry in allowing a person who does not possess a valid driving licence to drive the same.
( 1 ) THE Insurance Company filed these appeals and revisions against the orders and decrees passed by the Motor Accidents claims Tribunal, Karimnagar, in O. P. No. 522 of 1996 etc. Since all these matters arise out of a single motor accident, they are heard together and being disposed of by this common order. The respondents in these appeals are the injured/claimants.
( 2 ) THE brief facts: On 24-12-1995, the respondents/claimants in all these cases were proceeding on a tractor-trailer bearing no. AP 15-T-4219-4220 from Manakondur village to Alugunoor village for replantation of paddy seedlings in the land of one Salla Kistaiah. When the tractor and trailer reached near Kurmagundlu village at about 10. 30 a. m. , a lorry bearing no. A. P. 9-T-8816 came in the opposite direction in a rash and negligent manner at a high speed and dashed against the trailer of the tractor, due to which the trailer turned turtle and all the claimants fell down and sustained injuries. All the injured were shifted to the Government Hospital, karimnagar, for treatment and the concerned police registered a case against the driver of the lorry. The respondents/ claimants filed the O. Ps claiming compensation before the Tribunal, for the injuries sustained by them.
( 3 ) BEFORE the Tribunal, the owner and driver of the lorry remained absent and were set ex parte.
( 4 ) THE appellant-Insurance Company filed counter denying its liability to pay compensation contending, inter alia, that as on the date of accident there was no valid insurance for the lorry; that the accident took place due to the negligence of the driver of the tractor and that the driver of the lorry did not possess valid driving licence. The Insurance Company claimed protection under Sections 147 and 149 of the motor Vehicles Act.
( 5 ) THE claimants/respondents apart from adducing oral evidence, got marked certain documents, viz. , medical certificates, first Information Report, charge-sheet etc.
( 6 ) THE learned trial Judge, appreciating the oral and documentary evidence adduced by both parties, awarded compensation ranging from Rs. 2,000. 00 to rs. 13,000/- in the O. Ps. Aggrieved by the same, the present appeals are filed by the insurance Company.
( 7 ) IN these appeals and C. R. Ps, though the respondents are served with notices, none appeared on their behalf in this Court.
( 8 ) IT is contended by the learned Counsel for the appellant that the tractor collided with the lorry and that the driver of the lorry did not possess valid driving licence as on the date of accident. He submits that as per Ex. A-5, Xerox copy of driving licence, the driver of the lorry was having licence to drive a Light Motor Vehicle only and, therefore, he was not eligible to drive a heavy motor vehicle like the lorry. In support of this plea, the appellant-Insurance company examined R. W. 1, Assistant administrative Officer of the Insurance company. Learned Counsel further contended that in view of the judgment of the Supreme Court in United India Insurance company Limited vs. Shri Gian Chand and others1, wherein it was held that once the driver of the offending vehicle was found not possessing a valid driving licence, the insurance Company cannot be fastened with liability to pay compensation, particularly in che absence of any evidence either from the owner of the vehicle or the driver of the vehicle and therefore the insurance Company should be exonerated from the liability to pay compensation.
( 9 ) I have perused the orders under appeal and the evidence on record. It is seen from Ex. A-5, Xerox copy of driving licence of the driver of the offending lorry, the driver of the lorry was having licence to drive light motor vehicle only. Unfortunately, the owner and driver of the offending lorry remained absent in the tribunal and were set ex parte. Whether the licence held by the driver of the offending lorry in this case is sufficient to drive the lorry or not will be within the knowledge
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