In a proceeding under Section 163-A of the M.V. Act, the insurance company cannot raise the defense of negligence and is liable to pay compensation even if the driver did not have a valid driving license, unless it can prove that the risk of the driver was not covered under the insurance policy.

JUDGMENT

Banwari Lal Sharma, J. - Appellant-Insurance Company preferred this misc. Appeal assailing the impugned judgment dated 07.04.2007 passed by learned Motor Accident Claims Tribunal, Gangapur City in M.A.C.T. Case No. 37/2006 by which learned tribunal passed an award of Rs. 3,44,500/- in favour of respondent-claimants in claim petition filed by them under Section 163-A of M.V. Act.

2. The brief facts of the case are that respondent No. 1 to 6-claimants filed a claim petition under Section 163-A of Motor Vehicle Act, 1988 before learned tribunal pleading therein that on 17.4.2006, deceased Puran was driving the tractor No. RJ-25-RA-0425 and due to storm, the tractor fell in a pit and deceased Puran sustained serious injuries and thereafter he succumbed to the injuries on spot. At the time of aforesaid accident, the tractor No. RJ-25-RA-0425 was insured with the appellant-Insurance company.

3. In reply to the claim petition, appellant-Insurance Company pleaded that deceased was a learner and due to this, tractor fall in a pit and deceased was not having valid and effective licence, tractor was being driven by deceased himself and hence Insurance Company is not liable for the compensation.

4. Learned tribunal after completion of trial, allowed the claim petition in aforesaid terms.

5. Aggrieved by the impugned judgment dated 07.04.2007, appellant-Insurance Company preferred this misc. Appeal before this Court.

6. Mr. Raj Pal Choudhary learned counsel appearing on behalf of appellant-Insurance Company submits that driver of tractor was deceased himself who was not having valid and effective licence at the time of accident, therefore Insurance Company is not liable to satisfy the award amount.

7. He further submits that since the aforesaid accident took place due to the negligence of deceased, therefore respondent-claimants are not entitled for any compensation.

8. Thirdly and lastly, he submits that since no premium was received to cover the risk of driver, therefore Insurance Company is not liable.

9. Per contra Mr. Rahul Sharma learned counsel appearing on behalf of respondent supported the impugned judgment and submitted that the burden of proof that driver of tractor was not having valid and effective licence is on Insurance Company and Insurance Company failed to prove the same.

10. He submits that since insurance policy is a package policy, therefore Insurance Company is liable and the claim petition was filed under Section 163-A of M.V. Act, therefore negligence cannot be considered in the petition. As such, he prayed that the appeal may be dismissed.

11. I have considered the submissions made at Bar.

12. So far as driving licence of deceased is concerned, since the burden was on appellant-Insurance Company to prove that driver of tractor was not having valid and effective licence at the time of accident.

13. NAW-1-Gopal Chand is examined by appellant-Insurance Company to prove this fact, he simply stated in his statement that deceased Puran was not having valid and effective licence but during cross-examination he admitted that he didn''t inquire this fact from the office of D.T.O., Sawaimadhopur.

14. Similarly, NAW-2 Sher Singh in his statement stated that deceased Puran was not having valid and effective driving licence but during cross-examination he stated that he states this fact only on the basis of investigators report and there is no basis for that, therefore without inquiring regarding the issuance of driving licence in favour of deceased merely on the oral statements of aforesaid two witnesses, it cannot be said that deceased was not having valid and effective driving licence, learned tribunal also discarded this allegation and held that Insurance Company failed to prove that deceased was not having valid and effective driving licence which doesn''t require any interference.

15. So far as the negligence is concerned, recently larger Bench of Hon''ble Supreme Court in the matter of United India Insurance Comp