The burden of proving the validity of the driver's license lies with the owner, and the insurance company can be directed to pay first and recover from the owner.

JUDGMENT

S.M. Modak, J. - In this appeal the question arises is whether on the basis of the facts of the case, can it be said that the driver of the offending vehicle was having valid driving license ? The connected issue involved is 'on whom burden to prove fact of not holding license lies? And whether this Court can direct the Insurance Company to pay first and then to recover from the owner?

2. On the point of non requirement of endorsement on LMV license,Learned advocate Shri Agrawal relied upon the judgement in case of Mukund Dewangan vs Oriental Insurance Company. Whereas on the point of burden of proof, learned advocate Shri Paunikar relied upon the judgement in case of Pappu and others vs Vinod Kumar Lamba and another. The Motor Accident claims Tribunal, Washim, as per the judgment dated 08-10-2010, was pleased to answer that issue 'of not holding valid license' in the affirmative and was pleased to exonerate the Insurance Company for the breach of policy terms on the part of the insured/respondent no.1.

3. By the impugned judgment, the claims Tribunal on one hand exonerated the Insurance Company and on the other hand held the owner responsible and directed him to pay compensation of Rs.12,37,600/- along with the other benefits. The original claimants are challenging the said judgment of exonerating the Insurance Company. They have also asked for enhancement of the compensation.

4. I have heard learned Advocate Shri P.R. Agrawal for the claimants/appellants and learned Advocate Shri Paunikar for respondent no.2-Insurance company. Though appearance was put on behalf of the owner/respondent no.1, his Counsel has not remained present for arguing the matter. Hence, I am supposed to decide this appeal on the following grounds :-

REASONINGS

5. As to point nos. (i) to (v) :- There is no dispute about the manner of the accident. The Claims Tribunal has elaborately discussed the evidence on this point. Deceased Santosh Chitakalwar was a pillion rider on a motorcycle. It was driven by his friend. The accident took place on 23-11-2006 at about 18.30 hours. They were coming towards Washim from Mangrulpir. When they came near Ambapur Phata, the offending vehicle tractor dashed them. The tractor driver has negligently and recklessly driven the tractor. Santosh died on the spot. On the report of one Rahul Panditrao, Mangrulpir Police Station registered the offence under Sections 279, 337, 338 and 304-A of the Indian Penal Code against the tractor driver No.MH 37/A 5471 (name not known). The deceased was working as a Senior Clerk in the Maharashtra Jeevan Vikas Pradhikaran. The claimant no.1 is the wife, claimant nos. 2 and 3 are the minor son and daughter and claimant no.4 is the mother of the deceased. The respondents i.e. owner and the Insurance Company have appeared and filed written statement. The owner has pleaded about existence of the insurance policy and fixing the responsibility on the Insurance Company. Whereas Insurance Company has denied the manner of the accident, negligent driving by the Tractor driver and also taken a plea about non existence of valid driving license by the tractor driver.

6. Claimant no.1 entered into the witness box and examined one Ashok D