ORDER
V.S. Kokje, J.
1. This is an appeal by the owner of a Motor Vehicle involved in un accident claim case. Respondents Nos. 1 to 4 are the legal representative of late Kesar Singh who died in an accident and respondent No. 5 is a Insurance Company. The Motor Accident Claims Tribunal felt that the accident occurred due to negligence of Shanker Lal who was driving the bus at the time of the accident. The claim against the appellant to the tune of Rs. 1,32,000/- was awarded but the insurance Company was absolved holding that the vehicle was being driven by an unlicensed unauthorised person at the time of the accident in violation of the terms of the contract of Insurance.
2. Aggrieved by this Award, the appellant has filed this appeal.
3. The main contentions raised by the Shri B.L. Maheshwari. learned counsel for the appellant, are that the Tribunal had taken into consideration certain material which was not legal evidence and therefore the findings of the Tribunal were v itiated, that the burden of proof about the vehicle being driven by unlicensed Driver was on the insurance Company but the Tribunal absolved the Insurance Company even though it had nut led any evidence in the case.
4. Shri R.K.Churan, learned Counsel for the claimants and Shri N.P. Gupta, learned Counsel for the Insurance Company opposed the appeal
and supported the Award. Shri Charan however
supported the appellant on the ground of liability
of Insurance Company.
5. On the question of liability of the Insurance Company, the learned Counsel for the appellant relied on several decisions.
6. A single Bench decision of the Rajasthan High Court in New India Assurance Co. Ltd. v. Sushila Devi Sharma, 1981 Ace CJ 119, another judgment by the same learned Judge in Abdul Zabbar v. Ram Swaroop, 1985 Ace CJ 594, another single Bench Judgment in Shankerlal v. Shankerlal, 1988 Ace CJ 866 of the Rajasthan High Court, another single Bench judgment in Rajasthan State Co-op. Dairy Federation v. Brij Mohan Lal, 1990 Ace CJ 118, a Division Bench judgment of the Madras High Court in National Insurance Co. Ltd. v. Babu, 1990 Ace CJ 1003 : (AIR 1990 Madras 305) and single’ Bench judgment of the Gujarat High Court in United India Insurance Co. Ltd. v. Desai Babarbhai Maneklal, 1996 Acc CJ 613 were cited for the proposition that burden to prove that the vehicle at the relevant time was being driven by an unauthorized person, lay on the Insurance Company and it had to discharge it.
7. On the other hand Shri N. P. Gupta, learned Counsel for the Insurance Company placed reliance on the decisions of the Supreme Court in Kashiram Yadav v. Oriental Fire Ins. Co. Ltd., 1989 Acc CJ 1078, Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 Acc CJ 411 : (AIR 1987 SC 1184) and Division Bench decision of the Madras High Court in Transformers and Electricals Kerala Ltd. v. Union of India, 1992 Acc CJ 376.
8. Before the Tribunal, the respondent claimant examined one of the claimants Dhankanwar, widow of Kesar Singh, an officer of the State Bank of Bikaner and Jaipur Branch Chittorgarh, Shri Chandra Prakash Nyati, a co-employee of the deceased and one Bhagwati Lal eye-witness of the incident. None of the non-petitioners including the Insurance Company led any evidence. The Driver Shanker Lal was deleted from the array of non-petitioners after making some attempts to serve him with a notice.
9. The Tribunal assessed oral and documentary evidence on record and held that the accident took place because of the negligence of the Driver
of the Bus owned by the appellant. In absence of any oral evidence on the part of the non-petitioners, no other conclusion was possible. The finding on that count is therefore, maintained.
10. A plea was also raised by the appellant that he had already disposed of the vehicle and therefore he was not liable but that plea was not found to be proved for lack of any evidence on the point.
11. On the question of the Insurance Company being absolved from its liability as the vehicle was driven by unlicensed Driver, the Tribunal found that the Insurance Company was not liable as in this case right from the beginning, the defence of the appellant was that no person like the name of Shanker Lal was employed by him or was driving the Bus. The Tribunal also pressed into service record of a Criminal case and found on that basis that Shanker Lal was not holding valid driving licence. The Tribunal also relied upon the recording of a plea of guilty of Rajendra Prasad appellant in that Criminal case. On the basis of this evidence, the tribunal held that the vehicle was being plied at the time of accident in violation of the conditions of the policy. The Insurance Company was therefore absolved from the liability.
12. In view of the series of decisions on the point cited on behalf of the appellant it has to be held that the burden to prove that the vehicle at the relevant time was being driven by an unlicensed Driver was on the Insurance Company. The Insurance Company has not led any evidence in this case and the Tribunal has only on the basis of the record of the criminal case concluded that the vehicle was being driven by an unlicensed Driver. The decision of the Tribunal on the point is therefore, clearly wrong and unsustainable in law.
13. The decisions cited on behalf of the respondents do not nullify the effect of the series of decisions of this Court.
14. In Kashi Ram’s case, 1989 Acc CJ 1078, it was found as a fact obviously on the basis of valid legal evidence that the Driver had no driving licence. In the present case, there is no legal evidence to show that person driving the vehicle did not have proper and valid licence to drive. The cases cited by the learned Counsel for the respondents are not really on the question of
burden of proof. They are based on the facts proved in those cases. In the present case the very fact that the bus was being driven by an unlicensed Driver has not been proved by adducing legal evidence. As held in various cases decided by this Court cited above, the question cannot be decided on the basis of pleading applying the doctrine of non-traverse. When the respondent Insurance Company did not lead any evidence at all and in fact none of the non-applicants led any evidence and when the Driver of the vehicle was deleted from the array of non-applicants, it could not be presumed that the vehicle was being driven by a person not holding a proper and valid driving licence. The Insurance Company cannot therefore escape its liability, having admitted that the vehicle was insured with it.
15. So far as the quantum of compensation is concerned, the Tribunal has assessed it after proper discussion of the material before it and after appreciating the evidence properly, I do not find any ground on which such an assessment can be interfered with.
16. In the result, the appeal is allowed partly. The award of the Tribunal is maintained with a modification that the Insurance Company respondent No. 5 herein, shall be liable for payment of compensation. The Insurance Company is directed to make the payment to the claimants or if the appellant has made the payment of compensation to the claimants, to him, within, a month from today.
17. There shall be no order as to costs.