The insurance company must prove that the driver never had a license or was disqualified, and failure to do so would not absolve the company from liability.

V.B. GUPTA, J.

1. The present appeal u/s 173 of the Motor Vehicles Act, 1988 (for short as 'Act') has been filed by the Insurance Company against the impugned award dated 7th May, 2008 passed by Sh. J.P.S. Malik, Judge, MACT (for short as 'Tribunal'), New Delhi.

2. Brief facts of this case are that on 25th March, 1998, deceased Gobind Singh Negi was travelling in bus No. DL-IP-6046 from Minto Road to Safdarjung Airport bus stand for going to Prem Nagar there from.

3. It is alleged that the bus was not stopped at Safdarjung Airport bus stand by the driver and when deceased requested for stopping the bus, the driver applied brakes at some distance after crossing the bus stand. Due to the sudden jerk, the deceased who was standing nearby the front gate to get down of the bus, fell down from the bus and was run over and crushed under the wheels of the bus. It is further alleged that on falling down of the deceased, the bus driver instead of stopping the bus, speeded up the bus and took away the bus without caring for the safety of the deceased. The bus was driven by respondent No. 7/Tejveer Singh and thus the accident was caused due to rash, negligent and careless driving of this respondent.

4. Respondent No. 5/Dhani Ram was the registered owner of the bus at the time of the accident, whereas respondent No. 6/Harender Singh was having a Power of Attorney of the registered owner and the bus was insured with the appellant/Insurance Company.

5. Respondent No. 5/Dhani Ram could not be served by ordinary process and was ordered to be served by publication. Publication was effected but none appeared on his behalf and as such he was proceeded ex-parte by the trial court.

6. Appearance was given on behalf of respondents No. 6 and 7 on 24th October, 2005 before the trial court and time was sought for filing of the written statement. Later on, they did not appear nor did they file the written statement and they were also proceeded ex-parte.

7. The appellant/Insurance Company however has filed its written statement in which it has admitted that the vehicle in question was insured with it. However, it has been pleaded that the driver of the offending bus was not having a valid driving licence on the date of accident and as such the Insurance Company is not liable to pay any compensation.

8. Vide impugned judgment, an award for a sum of Rs. 4,61,370/- along with simple interest @ 9% p.a. from the date of filing of the petition till realization was passed in favour of the claimants and against all the respondents. It was further held, that the appellant being the insurer of the offending vehicle, is liable to discharge the liability.

9. Aggrieved with the impugned judgment passed by the Tribunal, the Insurance Company has filed the present appeal.

10. It has been contended by counsel for the appellant that the Tribunal has completely failed to take into consideration that the driver and owner of the offending vehicle did not appear to contest the petition before the Tribunal and were proceeded ex parte and therefore, the stand taken by the appellant in its written statement that the driver at the time of accident was not holding a valid driving licence is deemed to be admitted by the owner of the vehicle and therefore, the appellant was not required to produce any evidence to prove that the licence held by the driver at the time of accident was fake.

11. Further, the Tribunal has also ignored the material fact available on record that the appellant had summoned the concerned RTO a number of times as a witness but they failed to turn up and therefore, the appellant made efforts to produce the witness from the concerned Licencing Authority to prove that the licence held by the driver at the time of accident was fake.

12. Thus in the facts of the present case, the Tribunal has erred in law and facts in holding that no value can be attached to the testimony of R4W1 in the absence of any witness from the Transport Authority that the licence held by th