Sandip Kumar Chandrabhan More JUDGMENT
Sandip Kumar Chandrabhan More, J.
1. The appellant-Insurance Company, who is original Respondent No. 2 in M.A.C.P. No. 452 of 1997, has challenged the judgment and award dated 05.07.2002, passed by the Motor Accident Claims Tribunal, Jalgaon (herein after referred to as "the learned Tribunal") in the aforesaid Claim Petition, only on the ground that the learned Tribunal has wrongly fastened the liability of paying the compensation upon the Insurance Company by holding that the Insurance Company has failed to establish the fact that the driver of the offending vehicle was not possessing valid driving licence at the time of accident. The Insurance Company, however, has not challenged the assessment done by the learned Tribunal in respect of the compensation.
2. It is not disputed that on 13.01.1997, one Murlidhar Atmaram Bhamare was travelling in a Rickshaw bearing Registration No. MH-19-J-0037 on Nandgaon to Aurangabad road, which was being driven by Gopal Mohanlal Madane. Since it was driven in rash and negligent manner, it turned turtle and Murlidhar received severe injuries and succumbed to the same. It is also not in dispute that at the time of said accident, the aforesaid rickshaw was validly insured with the appellant-Insurance Company.
3. It is already stated herein above that the computation part is not at all challenged by the Insurance Company, but only liability to pay the compensation is under challenge.
4. With the assistance of learned Counsel for respective parties, I have gone through the impugned judgment and award & also Record and Proceedings of the aforesaid Claim Petition.
5. The learned Counsel for the appellant-Insurance Company submits that wrong inference has been drawn by the learned Tribunal that the Insurance Company is jointly and severally liable for paying the compensation to the original claimants, i.e. Respondents No. 1 to 4. He further submits that though the Insurance Company, in its written statement before the learned Tribunal, had raised a defence that the driver of the offending rickshaw was not possessing valid driving licence at the time of accident, but the burden to establish such fact was never upon the Insurance Company but it was on the owner of the said Rickshaw, who is present Respondent No. 5 and he failed to discharge the same. The learned Counsel for the appellant-Insurance Company heavily relied upon the following judgments:
01. In the case of National Insurance Company Limited Vs. Brij Pal Singh & another, MANU/UP/0905/2002 : 2004 STPL 98 Allahabad; and
02. In the case of Pappu and others Vs. Vinod Kumar Lamba and another, MANU/SC/0019/2018 : 2018 STPL 1202 SC.
6. On the contrary, learned Counsel for respective respondents, supported the impugned judgment and award and prayed for dismissal of the appeal.
7. Following two main issues are involved in the present appeal:
(i) Whether in the event when the driver of the offending vehicle does not possess valid driving licence at the time of accident, can the liability to pay compensation be fastened on the Insurance Company; and
(ii) Upon whom the burden lies to prove the fact that the driver of the offending vehicle was not holding valid driving licence at the time of accident.
8. In the judgment in the case of Brij Pal Singh (supra), the Division Bench of Allahabad High Court, has made following observations:
"21 The principle discussed above would be fully applicable here and the burden of proof that the driver of the truck had a valid and effective driving licence would be entirely upon the owner ........