Shiv Kumar Sharma, J.
1. Questioning the findings dated 27.4.2000 of Motor Accidents Claims Tribunal, Beawar, the appellant insurance company canvassed that as the driver of the offending vehicle did not have a valid driving licence, the appellant insurance company ought to have been absolved from liability by the learned Tribunal in respect of the claim for compensation.
2. Contextual facts depict that on account of accident caused by Bija Ram, the driver of jeep No. RJ 22-0738 on 9.7.1996, claimant-respondent Nidhi Toshniwal sustained fractures on both of her legs and left hand. She instituted claim petition against Bija Ram, the driver, Nazma, the vehicle owner and United India Insurance Co. Ltd., the appellant. Bija Ram and Nazma did not appear before the Tribunal and proceeded exparte. The appellant insurance company submitted written statement. As many as five issues were framed. On behalf of the claimant Laxmi Narain PW 1 was examined whereas the appellant insurance company produced Pukh Raj Hingar, DW 1. Learned Tribunal vide impugned judgment awarded Rs. 1,25,000 along with interest as compensation to claimant-respondent.
3. According to Mr. Alok Sharma, the learned Counsel the appellant company deserves to be absolved from liability to pay compensation on the following grounds:
(i) Driver was not having valid driving licence at the time of accident.
(ii) The appellant insurance company discharged its burden by examining Pukh Raj Hingar DW 1 who specifically stated that driver had only learner licence and in view of non-appearance of driver and vehicle owner adverse inference ought to have been drawn.
Reliance was placed on New India Assurance Co. Ltd. v. Mandar Madhav Tambe 1996 ACJ 253 (SC) and United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC).
4. Mr. J.P. Gupta, learned Counsel for the claimant, on the other hand, supported the impugned award and placed reliance on New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958-65 ACJ 559 (SC) and Rukmani v. New India Assurance Co. Ltd. 1999 ACJ 171 (SC).
5. The issue before the Hon'ble Apex Court in New India Assurance Co. Ltd. v. Mandar Madhav Tambe 1996 ACJ 253 (SC), was as to whether the driver holding learner's licence can be regarded as duly licensed driver within the meaning of Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939. It was held that 'driving licence' within the meaning of Section 2(5-A) does not include a learner's licence. As the words 'permanent driving licence' were incorporated in the insurance policy, the insurance company was not liable as the scooter was driven by a person who was holding a learner's licence.
Accident in Mandar Madhav Tambe's case involved two scooters, one was being driven by the claimant and the other by respondent No. 3. As a result of the accident claimant suffered some injuries and he filed claim petition. It was contended by respondent No. 3 that he had learner's licence. The Tribunal came to the conclusion that the accident had occurred due to negligence of respondent No. 3 and insurance company along with respondent No. 3 was also liable to pay the compensation. The High Court dismissed the appeal of the insurance company but their Lordships of the Supreme Court allowed the appeal as indicated hereinabove.
The ratio of Mandar Madhav Tambe's case does not help the appellant in the instant case because in the said case the driver and owner of the scooter was one and the same person and breach of the insurance policy was committed by him but in the instant case the driver and vehicle owner are two distinct persons and the question springing for consideration in the instant case is as to whether the appellant insurance company has proved that the breach of insurance policy by the vehicle owner was wilful?
6. In the case of United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC), the Tribunal took the view that the insurance company got exonerated from its liability on account of the fact that the insured had permitted the vehicle to be driven by an unlicensed driver and, therefore, the insured had committed breach of the relevant term of the policy and that entitled the insurance company to get the benefit of the exclusion clause available as defence to the company under Section 96(2)(b) of the Motor Vehicles Act, 1939. The driver of the vehicle preferred appeal before the High Court and contended that insurance company should have been made liable to pay compensation and was wrongly exonerated by the Tribunal. The High Court partly allowed the appeal to the extent that the insurance company has been held jointly and severally liable to pay compensation along with the insured and the driver. Their Lordships of the Supreme Court while setting aside the finding of the High Court observed thus (para 10):
We fail to appreciate how the aforesaid decision can be of any avail to learned Counsel for the respondents-claimants on the peculiar facts of the present case. It has been clearly held by the Tribunal as well as by the High Court that respondent No. 1 who was permitted to drive the vehicle by respondent No. 9, the insured, was admittedly not having any driving licence. It was not the case of respondent No. 9, the insured, that he did not know that respondent No. 1, whom the vehicle was being handed over, was not having a valid licence. In fact, once he did not step in the witness-box to prove his case, an adverse inference had necessarily to be drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver, respondent No. 1. That finding reached by the Tribunal as well as by the High Court must result in exonerating the insurance company of its obligation as the statutory defence became available to it.
7. In the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), their Lordships of the Supreme Court held that when the insured had handed over the vehicle to be driven by licensed driver and even if the licensed driver on his own and because of his negligence had allowed an unlicensed cleaner to drive the vehicle it could not be said that there was any breach committed by the insured so as to attract the exclusion clause in favour of the insurance company as contemplated under Section 96(2) of Motor Vehicles Act, 1939.
8. Section 149 of Motor Vehicles Act, 1988 prescribed the duty of the insurer to satisfy the judgments against the persons insured in respect of third party risks. Section 96 of the Motor Vehicles Act, 1939 was the parallel provision. In the case of Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC), their Lordships of the Supreme Court indicated that Section 96(2)(b)(ii) should not be interpreted in a technical manner. The expression 'breach' occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy that, such violation or infringement on the part of the insured was wilful. Unless it is established on the material on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Motor Vehicles Act, 1939.
9. The general rule as to the onus of proof and the consequent obligation of beginning is, that proof of any particular fact lies on the party who alleges it. This rule is derived from the Roman Law, and is supportable not only upon the ground of fairness, but also upon that of the greater practical difficulty which is involved in proving a negative than the proving an affirmative. He who invokes the aid of the law must establish his case and if leaves it imperfect, the court will not assist him. Hence the maxim 'potior est conditio de-fendentis'. (The condition of defendant is better). Words are but the expression of fact and, therefore, when nothing is said to be done, nothing can be said to be proved; which is probably what is meant by the maxim per rerum naturam factum negantis nulla probatio est.
10. In the case of Ratna Ganguly v. Ranjeet Kumar Ganguli 1987 (1) RLR 493, this court (G.M. Lodha, J. as he then was) indicated thus (para 9):
It has been repeatedly held by this court and other High Courts also in such matter the burden of proving that there was no driving licence lies with the insurance company and merely because the driver-cum-owner comes with the plea that there was no driving licence it cannot be held that this burden has been discharged. In Bhairon v. Nandram 1980 ACJ 513 (Rajasthan) and New India Assurance Co. Ltd. v. Sushila Devi Sharma 1981 ACJ 119 (Rajasthan), this principle has been repeatedly asserted, established and enunciated and emphasised by this court. In the instant case, the insurance company has not made any attempt or effort to prove that the truck driver had no driving licence. Contrary to it, it has only been contended by the driver or owner of the truck.
11. On close scrutiny of material on record demonstrates that the appellant insurance company in the instant case did not plead in the written statement that the breach of insurance policy was committed to the knowledge of the vehicle owner. Pukh Raj Hingar, DW 1 stated that the driver was holding only learner's licence but did not say a word that breach of insurance policy on the part of the insured was wilful. To hold the insured guilty the appellant insurance company has to establish that the insured had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle.
12. In Rukmani v. New India Assurance Co. Ltd. 1999 ACJ 171 (SC), their Lordships of the Apex Court in para 3 observed thus:
We have seen the only evidence which the insurance company has produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, 'My inquiry revealed that the respondent No. 1 did not produce the licence to drive the above said scooter. The respondent No. 1 even after my demand did not submit the licence since he was not having it'. In his cross-examination, he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the respondent No. 1 was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the insurance company. It did not summon the driver of the vehicle. No record from the Regional Transport Authority has also been produced. In these circumstances, the insurance company has not discharged the burden cast upon it under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939.
13. The ratio of United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC), is not applicable in the facts and circumstances of this case. In Gian Chand's case facts were not disputed and the insurance company got exonerated from its liability on account of the fact that the insured had permitted the vehicle to be driven by unlicensed driver. The insurance company discharged its burden and the facts were not disputed by the insured. Therefore, the adverse inference had been drawn against the insured. But in the instant case, the insured proceeded ex parte and the appellant insurance company has not stated about wilful breach of the insured either in the written statement or in the oral deposition. I am unable to persuade myself to agree with the submissions advanced by Mr. A.K. Sharma, the learned Counsel for the appellant insurance company. The appellant insurance company having failed to plead and prove that the insured wilfully violated the condition of the policy cannot escape from the obligation to indemnify the insured.
14. In view of what I have discussed hereinabove, the appeal has no merit and stands dismissed without any order as to costs.