JUDGMENT
V.K. Agarwal, J.
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 14.9.1994 in Motor Accident Claim Case No. 24 of 1991 by Motor Accidents Claims Tribunal, Ambikapur, District Surguja.
2. Deceased Sitaram was a driver employed by respondent No. 7 Walia Transport Company. On the date of accident, i.e., on 12.3.1991 Sitaram was taking the truck bearing registration No. DL-1-G-0160 belonging to respondent No. 7 to Korba. Siyaram, AW 2, was the khalasi, who was also travelling in the said truck. The respondent No. 8 Raj Kumar Patel was driving truck No. URH 9617 which was owned by respondent No. 9 Patel Goods Carrier and was insured by the appellant New India Assurance Co. Ltd. There was a collision between the two trucks, i.e., one being driven by deceased Sitaram and another being driven by the respondent No. 8 Raj Kumar Patel. As a result of the said accident, Sitaram sustained serious injuries. He was treated first at hospital at Renukot and thereafter at Benaras. However, Sitaram ultimately succumbed to the injuries sustained during the accident. The respondent Nos. 1 to 6 are his dependants/claimants who filed the claim petition under Section 166 of the Motor Vehicles Act, 1988.
3. The finding of the learned Tribunal was that the accident occurred on account of the rash and negligent driving of truck No. URH 9617 by respondent No. 8 Raj Kumar Patel. It was also held that respondent No. 8 Raj Kumar Patel, though he had a licence for driving light motor vehicle, but did not have a licence for driving heavy motor vehicle. However, the Tribunal held that driver Raj Kumar Patel, owner of the truck, Patel Goods Carrier and the appellant New India Assurance Co. Ltd. are jointly and severally liable to pay awarded amount of compensation.
4. Learned counsel for the appellant has submitted that in view of the specific finding that respondent No. 8 Raj Kumar Patel, driver of the offending truck No. URH 9617 was not having a valid driving licence for driving heavy goods vehicle, the liability could not have been fastened on the appellant insurance company, the insurer of the truck, in view of clear breach of terms of the insurance policy.
5. The learned counsel for respondent Nos. 1 to 6, claimants, however, supported the award granted against the appellant insurer. It was urged that it was an obligation of the appellant company to establish by adequate evidence that there was a breach of terms of policy. The appellant, however, has failed to adduce any evidence in that regard. It has further been urged that the respondent No. 8 driver of the offending truck No. URH 9617 was having valid driving licence as would be clear from the photocopy placed on record. It would further appear from the said photocopy that though initially the said driving licence was issued for motor car and light motor vehicle, but it was endorsed for heavy motor vehicle also. In view of above, it has been submitted that the contention of the appellant insurance company that there was a breach of terms of the policy is negatived. Therefore, the appellant was liable for the payment of awarded amount of compensation.
6. The undisputed position of the case is that truck No. URH 9617 dashed against truck No. DL-1-G-0160, which was being driven by deceased Sitaram. As a result of the said accident, Sitaram sustained grievous injuries and ultimately succumbed to them. It is also not in dispute that the claimant-respondent Nos. 1 to 6 are the legal representatives of deceased Sitaram.
7. The finding of the Tribunal that the accident occurred on account of rash and negligent driving of truck No. URH 9617 by respondent No. 8 Raj Kumar Patel is based on proper appreciation of evidence and has also not been challenged in this appeal. It is also not now in dispute that the respondent No. 9 is the owner of the truck No. URH 9617 and that it was insured by appellant New India Assurance Co. Ltd.
8. In view of rival contentions raised by learned counsel for the parties, the point that arises for consideration is as to whether there was breach of terms of policy issued by the appellant regarding truck No. URH 9617. As noticed earlier, the submission of the learned counsel for the appellant is that the breach was committed, inasmuch as the respondent No. 8, Raj Kumar Patel, was not having a valid driving licence for driving the said heavy vehicle, truck No. URH 9617.
9. As laid down by Supreme Court in Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), the burden to prove that there was breach of the contract of insurance is squarely placed on the shoulders of the insurance company and if the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.
10. In the instant case, though the appellant insurance company raised objection that the respondent No. 8, the driver of the truck No. URH 9617 had no driving licence, but it led no evidence in that regard. Thus, it has failed to discharge its burden of proving the above averment.
11. Further, it may be noticed that copy of the driving licence of respondent No. 8 Raj Kumar Patel is on record. The learned Tribunal has considered the said document and has observed that it is the photocopy of the driving licence of respondent No. 8, the driver of the offending vehicle No. URH 9617. The learned Tribunal found that the said licence related to motor car and light motor vehicle. It has held that the owner, driver and the appellant insurance company were jointly and severally liable for the payment of the amount of compensation awarded.
12. It may be noticed in the above connection that in Mohd. Karim Khan v. Shamsher Khan 1991 (1) MPLJ 549, the Division Bench of this court has held that if the vehicle was being driven by the insured himself who was possessed of valid licence to drive light motor vehicle and if he was not disqualified for holding or obtaining a driving licence to drive a transport vehicle, the insurance company cannot escape its liability.
13. In Oriental Insurance Co. Ltd. v. Bare Lal 1998 ACJ 248 (MP), the Division Bench of this court has repelled the contention advanced on behalf of the insurance company that the driver of the offending vehicle, the truck, was not having licence to drive heavy motor vehicle, but was having a licence only to drive light motor vehicle and, therefore, the insurance company was entitled to be absolved of its liability, in view of the breach of terms of policy. In that case, there was a typed endorsement on the licence of driver authorising him to drive a transport vehicle and the insurance company failed to lead any evidence that the driver on the relevant date did not possess any valid licence to drive heavy vehicle.
14. As noticed earlier, in the instant case also, the photocopy of the licence of respondent No. 8, Raj Kumar Patel would indicate that it was endorsed for heavy motor vehicle also. The insurance company has failed to lead any evidence to show that respondent No. 8 Raj Kumar Patel did not have valid licence for driving heavy motor vehicle. It was also not shown that he was disqualified for obtaining a valid driving licence for transport vehicle.
15. In view of above, the appellant has failed to place any material on record to substantiate its contention that there was breach of terms of policy. In fact, it appears that the respondent No. 8, the driver of offending vehicle, held a proper licence to drive heavy vehicle. In view of above, the contention of the learned counsel for appellant that there was breach of terms of policy due to which the appellant could not be made liable to pay the amount of award, cannot be accepted.
16. Accordingly, this appeal has no merit and is dismissed.