The lack of a valid driving license by the driver constituted a violation of policy condition and statutory violation, placing the burden on the owner to establish the driver's valid license.

JUDGMENT

(Prayer:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the decree and judgment dated 21.12.2018 made in MCOP.No.171 of 2017 on the file of the Principal District Judge, Pudukkottai.)

1. The appeal has been filed by the Insurance Company challenging the award passed by the Motor Accident Claims Tribunal in MCOP.No. 171 of 2017 primarily on the ground of liability.

2. The injured claimant had contended that while he was driving a two wheeler at about 3.00 p.m on 25.01.2016, a tipper lorry belonging to the first respondent and insured with the second respondent coming from the opposite direction was driven in a rash and negligent manner and dashed against the two wheeler. In the said accident, the claimant had sustained grievous injuries and hence, he had prayed for a sum of Rs.30,00,000/- towards compensation.

3. The owner of the offending vehicle namely the tipper lorry had remained exparte and the insurance company had filed a counter contending that the driver of the lorry was not having a badge to drive the heavy vehicle at the relevant point of time. They have further questioned the manner of accident and the quantum of compensation as prayed for.

4. The Tribunal after considering the oral and documentary evidence arrived at a finding that the accident has taken place only due to the rash and negligent driving on the part of the driver of the first respondent. The Tribunal had fixed the compensation at Rs.3,74,520/- and directed the insurance company to satisfy the award. Challenging the same, the present appeal has been filed.

5. According to the learned counsel appearing for the appellant, admittedly, the tipper lorry is a heavy vehicle and the same was proved by filing Exhibit R2 insurance policy which indicates the G.V.W of the vehicle. He had further contended that he had filed Exhibit R1 to establish the fact that the driver of the vehicle was not having endorsement or badge at the time of accident. Therefore, it is clear that at the time of accident, the driver of the offending vehicle did not have valid and effective driving licence. Hence, it is a clear case of violation of policy condition and the Tribunal ought not to have directed the insurance company to satisfy the said award instead the Tribunal ought to have permitted the insurance company to recover the award amount from the owner after satisfaction of the award.

6. The learned counsel for the appellant had relied upon the judgment of the High Court of Jharkhand at Ranchi reported in 2010 ACJ 95 ( Tripurari Mandal Vs. Oriental Insurance Co.Ltd., and another) to contend that a duty is cast upon the insurer to see that the driver was holding valid driving licence. Therefore, the burden is upon the insured person to establish that he had handed over the vehicle to the driver was holding valid driving licence.

7. Per contra, the learned counsel appearing for the respondent had relied upon the judgment of the Hon''ble Supreme Court reported in 2004 ACJ 1 (National Insurance Co.,Ltd., Vs. Swaran Singh and others) to contend that mere absence of an invalid driving licence at the relevant point of time is not by itself a defence available to the insurer against the insured person or a third party. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy by a duly licensed driver. The learned counsel for the respondent had further contended that in order to avoid liability, the insurance company must not only establish the available defence raised in the said proceedings but must also establish breach on part of the owner of the vehicle.

8. As per the said judgment of the Hon''ble Supreme Court cited supra, the burden of proof would be upon the insurance company to establish the same. The learned counsel had further relied upon the judgment of the Hon''ble Supreme Court in Civ