The absence of a valid driving license is not a defense available to the insurer, and the insurer must prove the insured's negligence in fulfilling the policy condition regarding the use of vehicles by a duly licensed driver.

JUDGMENT :

A.K. Rath, J.

This is a claimants' appeal against the award dated 4.4.2015 passed by the 2nd Additional District Judge-cum-MACT, Cuttack in MAC Case No.529 of 2009, whereby and whereunder, the Tribunal has awarded an amount of Rs.3,74,000/- with interest @6% per annum from the date of filing of the claim application and saddled the liability on the owner of the vehicle, since the driver of the offending vehicle did not have a valid and effective driving licence at the time of accident.

2. Shorn of unnecessary details, the short facts of the case are that one Champabati Das was travelling in an auto-rickshaw bearing registration no.OR-22C-4915. On 29.7.2009 at about 4.30 P.M. on N.H.5 near Paikirapur Chhak, the auto-rickshaw upturned, as a result of which, she sustained multiple injuries. Thereafter, she was shifted to Chandbali C.H.C. and then to S.C.B. Medical College and Hospital, Cuttack for treatment. While undergoing treatment, she died on 31.7.2009. The matter was reported to Chandbali Police Station, whereafter Chandbali P.S.Case No.72 of 2009 was registered against the driver of the offending vehicle. With this factual scenario, the claimants, daughters of the deceased, filed an application under Section 166 of the M.V.Act before the 2nd Additional District Judge-cum-MACT, Cuttack claiming compensation of Rs.5,00,000/-. It was stated that the deceased was a sweeper and getting Rs.6,000/- per month.

3. The owner of the vehicle was set ex parte. Pursuant to issuance of summons, opposite party no.2, insurer of the vehicle entered appearance and filed written statement denying the assertions made in the claim petition.

4. On the inter se pleadings of the parties, the Tribunal struck four issues. To prove the case, the claimants had examined one witness and on their behalf, seven documents had been exhibited. On an analysis of the evidence on record and pleadings, the Tribunal came to hold that due to rash and negligent driving of the driver of the auto rickshaw, the accident took place. The driver of the auto rickshaw did not have a driving licence at the time of accident. Held so, it awarded an amount of Rs.3,74,000/- with interest at the rate of 6% per annum and saddled the liability on the owner of the vehicle.

5. Heard Mr. B.N. Samantaray and Mr. D. Pattnaik, learned counsel for the appellants and Mr. A.A. Khan, learned counsel for respondent no.2.

6. Mr. Samantrary, learned counsel for the appellants submits that Champabati Das was a passenger in the auto rickshaw. Due to rash and negligent driving of the driver, she sustained multiple injuries. While undergoing treatment, she died in the hospital. Merely because the driver of the offending vehicle did not have licence, the insurer is not exonerated from its liability. He placed reliance on a decision of the apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh and others, (2004) AIR SC 1531.

7. Per contra, Mr. Khan, learned counsel for respondent no.2 submits that driver of the auto rickshaw did not have a driving licence. The insurer is exonerated from its liability. The Tribunal has rightly saddled the liability on the owner of the vehicle.

8. The seminal question that hinges for consideration before this Court as to whether the insurer is exonerated from its liability, if a driver of the offending vehicle had no driving licence at the time of accident ?

9. In Swaran Singh, the apex Court made an in-depth analysis and summarized the principles. The apex Court held:

"105. (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.

(ii) Insurer is entitled to raise a defence in a claim petition