An insurer is not liable to pay compensation for an accident caused by a driver who does not hold a valid license or when the vehicle is being used to carry passengers in breach of the policy terms.

( 1 ) THE abovementioned three appeals arise out of three claim petitions brought by Smt. Prem (Claim Petition No. 59/92), Smt. Narayanibai (Claim Petition No. 58/92) and Smt. Shanti (Claim Petition No. 60/92 ). They have arisen out of the same accident but different claim petitions were preferred. Hence the learned Court below decided them separately though it appears that evidence was recorded only once and carbon copy was placed on the record of the two remaining cases. As common question of law has been raised they are being disposed of by this common order.

( 2 ) THE factual position over all is admitted. It is admitted that an accident had taken place on 16-7-1992 when the claimants were going in Metador No. MP 08 8265 owned by Gopal Krishna Tiwari and driven by Pappu. It was claimed by the claimants that they were engaged as labour for collecting muram and were going on the said vehicle. It was claimed that on Narwar road it was being driven rashly and negligently by Pappu driver as a result of which it turned turtle causing injuries to the claimants. The claimants claimed different amounts in their different petitions as compensation. All the three claim petitions were contested by the New India Assurance Companylimited It was denied that the accident had taken place on account of rash and negligent driving of the vehicle. The chief defence taken by the insurer was that the ensured had violated the terms of the policy. The vehicle was to be used for carrying goods but passengers were being taken either gratuitously or on hire. It was not meant for carrying labour. It was not being driven by a licenced driver. The Tribunal after considering the entire material awarded compensation to claimants in Claim Petition No. 59/92 Rs. 35,000/- in Claim Petition No. 60/92 Rs. 20,000/- and to claimants in Claim Petition No. 58/92 Rs. 30,000/ -. The responsibility to pay the compensation was ordered to be joint and several. Hence these appeals by the Insurer.

( 3 ) THE learned Counsel for the appellant raised two legal points. Firstly, he urged that it is apparent from the record that the vehicle was being driven by Pappu who had no valid licence and thus it was a specific breach of the condition and the Insurer is not liable under the terms of the policy. The next contention of the learned Counsel is that passengers were being carried on the goods vehicle which too was a breach of terms. In this connection he referred to the averments in the F. I. R. copies of which have been filed with each claim petition wherein it has been mentioned that about 15 or 16 passengers were carried in the vehicle. He also referred to the terms of the policy. The learned Counsel for the claimants contended that it was the duty of the Insurer to have proved as a fact that the vehicle was not being driven by a licensed driver and unless it is proved the Insurer cannot be exonerted of his liability. As regards second contention he argued that the injured were labour who were engaged for collecting muram and as such it too does not amount to breach of conditions. Both the learned Counsel placed reliance upon a number of authorities in support of their respective contentions.

( 4 ) BEFORE dealing with the legal submissions raised by the learned Counsel for the parties, it is necessary to go through the factual aspect of the matter. As said earlier, it is not disputed that the vehicle was being driven by Pappu and was owned by Gopal Krishna Tiwari. It has been strenuously argued by the learned Counsel for the claimants that the onus to show that the vehicle was being driven by unlicensed driver was upon the Insurer and the Insurer has failed to discharge. He placed reliance upon 1991 Vol. II M. P. W. N. Note 14 (Lalchand v. Ku. Kanta) where the defence of the Insurer was that the driver was not holding a valid licence. The Court held that it has to be proved by the Insurer itself. The other authority relied upon is 1995 Vol. I M. P. W. N.- Not