A condition in an insurance policy excluding coverage for driving by an unlicensed person is valid and enforceable if it is a statutory condition contemplated by the Motor Vehicles Act, 1939.

JUDGMENT:- This appeal and the revision petitions arise out of the claims made regarding a motor accident. The accident took place on 21-12-1967, the motor car bearing registration No. MSY 6929, belonging to Mohamed Ebrahim, the plaintiff in O. S. No. 73 of 1969, was being run as a taxi. The bus MDO 5783 belonging to the first defendant in that suit was the other motor vehicle involved in the accident. It was a head on collision between the two vehicles in which the motor car (MSY 6929) came to be badly damaged. The occupants of the car had been injured. The claim in the suit, out of which A. S. No. 348 of 1972 arises, is made by the owner of the car (taxi) regarding the damage to the vehicle on the ground that the accident was due to negligence on the part of the driver of the bus. The four revision petitions arise out of four different claim petitions filed by the injured in the said accident.

2. The owner of the bus and the insurer thereof who were made parties to the suit as well as the claim petitions contested the claims. The court below held that the accident was due to the negligence on the part of the driver of the bus and that therefore, the owner of the car as well as the injured are entitled to compensation. It fixed the compensation payable to the owner of the car (plaintiff in O. S. 73 of 1969) towards the damage to the vehicle at Rs. 9000 and further added a sum of Rs. 2000 as the amount that the owner of the car lost as a result of the accident, inasmuch as the car which was running as a taxi was not able to be put on the road for a long period. Regarding the four injured, the court below fixed certain amounts as compensation.

3. It held that the owner of the bus alone liable to pay the damages to the owner of the car as well as the compensation payable to the injured, exonerating the insured.

4. The case of the insurer has been that the bus was driven at the time of the accident by a person who had no licence to drive a vehicle of that type and that, therefore, as per the conditions of the policy, the accident is not covered by the same. This contention of the insurer has been accepted by the court below and hence the owner of the bus alone has been made liable. Hence the appeal and the revision petitions by the owner of the bus.

5. Regarding the question of negligence, there is not much to be said in favour of the owner of the bus. A rough plan prepared by the police officer who investigated the accident has been exhibited in the case and the correctness of the same is not questioned. That plan itself shows the position of two vehicles when the head on collision took place. The car was going on its proper track and it was the bus which swerved from its track and came to the wrong side and attacked the car. Kalipullah who was the driver of the car gave evidence to the effect that he was driving the car keeping to the proper side and the bus, all of a sudden swerved from its path and attacked the car. As against this, one Swaminathan, claiming to be the driver of the bus, has been examined as D.W. 2. He said that he drove the bus in the proper track and the taxi was driven in a zig-zag way and that, that was the cause for the accident. There are sufficient grounds to hold that Swaminathan, D.W. 2, is a put up witness and that he was not the driver of the bus at the relevant time, though he might be the authorised person to drive the said vehicle. It is in evidence that one Murugayyan, a mechanic, was the person who drove the bus at the relevant time. It was the said Murugayyan who had been prosecuted by the police for rash and negligent driving regarding the accident and he had been convicted by the criminal court. Under such circumstances, it is not seriously contended before me that it was Swaminathan, D.W. 2, who actually drove the bus. That means, D.W. 2 is not a competent witness to speak about the manner in which the accident took place. The evidence of P.W. 4, driver of the car, is in accordance wit