ORDER
Ashutosh Mohunta, J.
1. The owner of the offending vehicles has filed the present appeal against the judgment dated 24.9.1997 passed by the Motor Accidents Claims Tribunal, Kaithal (for short, the Tribunal) by which the owner and driver were held liable to pay compensation of Rs.30,000/- alongwith interest to the claimants who are legal representatives of deceased Soran.
2. On 2.5.1993, Soran and Rameshwar son of Bhartu were going from village Ramana Ramani to village Bakal in District Kaithal to do labour work in the fields. A truck bearing registration No. HNQ-536 came from behind and struck against Soran who was walking on the Katcha berm of the road. As a result of the accident, Soran suffered multiple injuries on the head and died on the spot. He was 55 years of age at the time of his death and in the claim petition it was stated that he was earning Rs. 1,500/- per month as a labourer. The Tribunal found that the accident took place because of rash and negligent driving of the driver of the truck, namely, Bhim Singh. The Tribunal also found that the deceased was contributing a sum of Rs.500/- towards his family and on this basis, by applying a multiplier of 5, awarded a total compensation of Rs. 30,000/-alongwith interest from the date of the petition till realisation.
3. The finding with regard to the accident having taken place on account of rash and negligent driving of the truck by Bhim Singh as well as quantum of compensation has not been challenged in this appeal. The only challenge by the owner is that as the vehicle was duly insured, therefore, it was the Insurance Company which was liable to indemnify the respondent.
4. It has been argued by Mr. Rakesh Gupta, learned Counsel for the owner of the offending vehicle that the Tribunal has wrongly absolved the Insurance Company, It has been submitted that it was not proved before the Tribunal that the driver was not having a valid licence. The Tribunal has based its finding only on account of the fact that the records regarding the driving licence were not traceable in the office of the Licensing Authority. Even for holding that the records were not traceable, no one from the office of the Licensing Authority has been examined.
5. On the other hand, Mr. Ashwani Talwar, counsel of the Insurance Company has argued that the records pertaining to the driving license was not available in the computer which obviously gives rise to the presumption that no such licence was ever issued by the Delhi Licensing Authority.
6. I am of the considered opinion that to show that the record is not available is not sufficient. The insurer has to say that no driving licence was ever issued. In the present case, there is no such evidence on the record. It was incumbent upon the Insurance Company to examine on official from the office of the Licensing Authority.
7. In Rukmani v. New India Assurance Company , the Hon’ble Apex Court has held that if no person is examined from the office of the Licensing Authority then the insurer has not discharged the burden of proof that the licence was fake.
8. Apart from the above, the Insurance Company has led no evidence to show that there was a wilful breach on the part of the owner of the offending vehicle in employing the driver.
9. The question Whether the Insurance Company can escape its liability from indemnifying the insured in a case of a fake or invalid driving licence has been answered by the Hon’ble Supreme Court in the case of National Insurance Co. Ltd v. Swaran Singh and Ors. , wherein it has been held as under:-
(iii) The breach of policy condition e.g. Disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insurer, Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the 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 regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
10. This view has been taken by the Hon’ble Supreme Court of India in United India Insurance Co, Ltd. v. Lehru and Ors. (2003-2)134 P.L.R. 124 (S.C.).
11. In view of the above, the Insurance Company is also held jointly and severally liable alongwith the appellants to indemnify the insured and to pay compensation to the claimants. As the entire amount has already been paid to the claimants by the appellants, therefore, the Insurance Company shall pay to the appellants the entire amount as paid by them to the claimants.