Compensation enhanced by Appellate Court.

P. Sathasivam, J.

1. Claimants in M.A.C.T.O.P.No.2074 of 1996 on the file of the Motor Accidents Claims Tribunal (IV Judge, Court of Small Causes) are the appellants in the above appeal. In respect of death of one G. Krishnamurthy in a motor vehicle accident which took place on 8/9.5.96 at 01.15 hours, wife, minor children and mother of the deceased have prayed for compensation of Rs.7,00,000. Second respondent therein insurance company filed counter statement disputing various averments made in the claim petition.

2. Thetribunal, after considering the oral and documentary evidence and after holding that the accident was caused due to the negligence of the rider of the motor cycle has passed an award for Rs.3,22,200 with interest at 12% from the date of petition till the date of deposit. In view of the fact that the rider of the motorcycle was not having licence, the tribunal restricted the award only against the owner of the motorcycle viz. the first respondent herein.

3. Against that award, the claimants have preferred the present appeal seeking the liability on the insurance company as well as claiming higher compensation.

4. Heard learned counsel for the appellants as well as the contesting second respondent.

5. Since the appeal is only by the claimants, it is not necessary for us to consider the facts leading to negligence aspect.

6. Points for consideration in this appeal are:-

(i) Whether the second respondent-insurance company is also liable to pay the award amount?

(ii) Whether the claimants are entitled to higher compensation as claimed?

7. With regard to the first contention, it is seen that the rider of the motorcycle viz., Vinayagamurthy was not having licence to drive the motorcycle. On the part of the Insurance Company, their officer one Daniel has been examined as RW1 and he has produced copy of the letters dated 4.3.99 and 7.3.99 as well as returnedcover as Exs.R2 to R4. The insurance Company has also produced and marked a copy of the insurance policy Ex.R5. It is the case of the insurance company that inspite of their best efforts, the rider of the motorcycle did not produce the licence to drive the motorcycle and in such circumstances, according to them, they discharged their burden and they contented that the tribunal is fully justified in passing the award only against the owner of the motorcycle, the first respondent herein. It is also contented that on the basis of the complaint, the Traffic Police, after verification and examination, charge sheeted the rider of the motorcycle viz. Vinayagamurthy under Sec.304A, IPC, Sec.184, 134A and B, 177 and 158 of the Motor Vehicles Act for rash and negligent driving as well as for failure to produce valid driving licence.

8. It is true that the insurance company had sent notice calling upon the rider of the motorcycle for production of driving licence. However, a perusal of the impugned proceedings show that no steps have been taken to verify the records from the concerned authority viz., Regional Transport Authority to show that the rider of the motorcycle was having a valid licence or not. In the absence of any such effort by taking summons to the concerned authority, we are of the view that the Insurance Company failed to discharge their burden on this aspect. In this regard, the learned counsel for the appellants-claimants has relied on several decisions of this Court, other High Courts and Supreme Court.

9. In Narcinvav Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 the Supreme Court has held that the onus was on the Insurance Company to prove that the driver had no driving licence to escape liability. It has also been held that mere non production of the licence by the driver does not exonerate the insurance company and it was held liable to indemnify the award. In Oriental Insurance Co. Ltd. v. Usha, 1996 ACJ 838, the Kerala High Court has held that merely because the driver of the offending vehicle did not possess a valid driving licence,