JUDGMENT
K.K. Srivastava, J.
1. This judgment will dispose of four L.P.A. Nos. 814, 815, 816 and 817 all of 1986, filed against judgment of a learned Single Judge of this Court delivered onl6.7.1986 in F.A.O. Nos. 155, 156, 233 and 234 all of 1985, directed against judgment dated 15.11.1984 of Motor Accident Claims Tribunal, Faridkot, deciding Motor Accidents Claims No.33 and 34 of 1982.
2. The two Motor Accident Claims cases were filed by the heirs and dependents of two deceased Kishan Chand son of Ram Rakha and Lakhvir Singh son of Santa Singh involved in a Motor accident taking place on 19.9.1982 at about 6.15 p.m. in Malout, Tehsil Muktsar, District Faridkot, in the State of Punjab near the turning of old Bus Stand at Malout.
3. The Motor Accidents Claim No. 33 of 5.11.1982 was filed by Smt. Gulab Kaur wife of Santa Singh and mother of Lakhvir Singh, the other deceased, Surjit Kaur widow of Lakhvir Singh and minor sons Gurmit Singh, Harjinder Singh and Jatinder Singh of Lakhvir Singh (deceased) and their sons Kuldip Rai, Shivdutt Rai and Ravinder Paul against Girdhari Lal son of Hans Raj, appellants Ram Narain and Sham Sunder and New India Assurance Company Ltd., New Delhi. Smt. Tej Kaur is the mother of the deceased Kishan Chand. The Motor Accidents Claims Tribunal, Faridkot decided both the claim petitions by a common judgment dated 15.11.1984.
4. The offending vehicle in the said accident was a tractor No. PBX-3208 owned by appellants Ram Narain and Sham Sunder and driven by Girdhari Lal who, it is alleged, did not hold a valid driving licence. The Tribunal held that the aforesaid tractor was being driven by Girdhari Lal at the time of the accident, rashly and negligently and caused the accident in which deceased Kishan Chand was hit from the rear side and thereafter the tractor went out of control and it hit the cycle of Lakhvir Singh (deceased) who fell down and died at the spot. The tractor could not still be controlled by Girdhari Lal and it ran into a hand-cart on the road-side. The Tribunal awarded compensation to the claimants and held the owners of the tractor liable for the payment of the compensation to the claimants. He, however, held that Girdhari Lal, who was driving the tractor at the time of accident, admittedly, did not hold any driving licence, and, as such, the Insurance Company i.e. the New India Assurance Company, the insurer of the vehicle i.e. the tractor was not liable to pay compensation as per terms of the Insurance Policy (Exhibit R1), and in view of the provisions contained Under Section 96(2) (b) of the Motor Vehicles Act, 1939 (for short the Act, 1939). The Tribunal accordingly fastened the liability to pay the compensation on the owners of the truck, namely, Ram Narain and Sham Sunder and Girdhari Lal who caused accident. The Tribunal directed further that Girdhari Lal was to pay half of the compensation amount while the remaining half of the amount of compensation shall be paid by the owners aforesaid. Against the judgment of the learned Motor Accidents Claims Tribunal, four first appeals, referred to above, were filed, which came up for hearing before a learned Single Judge of this Court on16.7.1986. The learned Single Judge dismissed the appeals filed by Ram Narain and others and allowed the appeals filed by the claimants. The amount of compensation payable to the claimants of Kishan Chand (deceased) was enhanced to Rs. 1 lac while in the claim case in respect of the other deceased Lakhvir Singh it was enhanced to Rs. 80,000/-. It was further directed that out of the compensation awarded to the claimants in the case of Kishan Chand, a sum of Rs. 10,000/- each shall be payable to the mother and the sons of the deceased and the balance to his widow. Similarly, in the case of Lakhvir Singh (deceased), out of the compensation awarded, Rs. 10,000/- each shall be payable to the mother and sons of the deceased and the balance to his widow. The claimants were also held entitled to get interest @ 12% per annum from the date of the application to the date of the payment of the amount awarded. The liability for compensation awarded was held to be that of Girdhari Lal, Ram Narain and Sham Sunder.
5. Feeling aggrieved against the judgment of the learned Single Judge, Ram Narain and Sham Sunder, owners of the tractor filed the aforesaid four LPAs which are being disposed of by this judgment.
6. Vide order dated 17.11.1987 a Division Bench of this Court dismissed the appeals filed against the claimants. The appeals were admitted as against the Insurance Company so as to enable the Court to decide whether the Insurance Company is liable or not and that is how these four appeals are now before us for disposal of the limited question regarding the liability of the Insurance Company i.e. New India Assurance Company Limited to pay the amount of compensation awarded to the claimants of the two deceased, namely, Lakhvir Singh and Kishan Chand.
7. We have heard learned counsel for the appellants and the learned counsel for the respondent-Insurance Company. We have perused the judgment of the learned Single Judge.
8. At the very outset it may be mentioned that Girdhari Lal, who at the time of the accident was driving the tractor belonging to the appellants Ram Narain and Sham Sunder, never took a plea of holding a driving licence and consequently, it is the admitted position that there was no driving licence with Girdhari Lal much less a valid and a proper driving licence. The learned Tribunal while considering the liability of the respondents of the claim petitions has, in para 29 of the judgment held that:
“Now the next point for determination is as to who is to pay this compensation. Shri V.P. Sharma the learned counsel for the insurer submitted that it is admitted that Girdhari Lal who was driving the tractor was not holding any driving licence at the time of the accident and thus the insurer was not liable in terms of the Insurance Policy Ex.R-1. This factual position has not been disputed and is beyond dispute. Under Section 96(2)(b) of the Act, it is open to the Insurance Company to avoid liability in case it is found that there is breach of any of the conditions specified in the Policy and enumerated in aforesaid section. The insurer, in the instant case, can thus avoid its liability, when respondent Girdhari Lal who was driving the tractor at the time of the accident was not possessed of any driving licence.’
9. Girdhari Lal was examined as respondents’ witness before the Tribunal. The learned Single Judge has referred to the evidence of Girdhari Lal as under: “A reference to the evidence on record would show that the only witness examined against the claimants was R.W.1-Girdhari Lal, who denied that he was the driver of the tractor or that any accident had been Caused by him while driving it. The falsity of this statement is amply brought out by the judgment of the Judicial Magistrate Ist Class, Gidharbaha, as also his own admission in cross-examination that he had been challaned and convicted for causing the death of Kishan Singh and Lakhbir Singh by his rash and negligent driving of the tractor. It is significant to note that he made no mention nor did he care to explain how and in what circumstances he drove the tractor when the accident occurred.”
10. The learned Single Judge further noted that the owners of the tractor i.e. the appellants Ram Narain and Sham Sunder despite taking a plea in the written statement that Girdhari Lal was not the driver, did not enter the witness box to depose about this fact or explain as to how Girdhari Lal came to drive their tractor and caused the accident. In our considered view, the learned Single Judge has rightly concluded as under:
“The law is well-settled as held in Smt. Lajwanti and Ors. v. Haryana State and Ors., A.I.R. 1985 Pb. and Hy. 71; “There is a presumption, rebuttable no doubt, that a vehicle is driven on the master’s business and by his authorised agent or servant, and consequently the owner or master is vicariously liable for the negligence of such servant or agent committed in the course of his employment.” This was a case where the bus driver and conductor had left the bus unattended at the bus-stand. While standing there, the bus was driven away by a stranger who caused an accident with it. It was held that the State-the owner of the bus was vicariously liable for the accident. Applying this ratio to the present case, there can be no escape from the conclusion that the Tribunal rightly held Ram Narain and Sham Sunder the owners of the offending tractor-to be vicariously liable for the compensation awarded.’
11. In view of the aforesaid finding regarding Girdhari Lal that he does not hold a valid driving licence of tractor, the liability of the Insurance Company i.e. New India Assurance Company Limited to pay the compensation being the insurer of the vehicle will not arise. The learned Tribunal as well as the learned Single Judge have rightly held that the Insurance Company was not liable for the payment of the compensation as there was breach of the conditions specified in the policy and the same was open to the Insurance Company under the provisions of Section 96(2)(b) of the Act 1939. Section 96(2)(b)(ii) of the Act 1939, inter-alia, provides as under:
Section 96(2) – No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so. long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely
(a)……………
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely –
(i)……………
(ii) a condition excluding driving by a named person or persons or by any persons who is not duly licensed, or by any persons who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or”
12. In view of what has been discussed above, we are of the considered view that these appeals lack merit and are dismissed.