1. These four appeals are preferred by the United India Insurance Company Limited, respondent No. 3 in the lower court, challenging the judgments of the Motor Accidents Claims Tribunal, Kurnool dated 11th September, 1989, passed in C.P Nos. 208, 206, 207, and 205 of 1988, awarding various amounts of compensation in favour of the claimants in each petition.

2. While the petitioners in the first three appeals, viz., C.M.As 1988, 1989 and 1990 of 1989 are the legal representatives or dependants of the respective deceased, the petitioner concerned in C.M.A No. 1991 of 1989 is the injured person.

3. The case of the petitioners in all the appeals is that on the date of incident (i.e 6-5-1988) at about 10-00 a.m when the deceased persons, the injured petitioner Ramakka and others were waiting by the side of the road near a culvert at Kanala village to board a bus to get to a shandy, the tractor driven by the 1st respondent, loaded with stones, came at a high speed and dashed against the deceased and the injured petitioner, as a Result of which the deceased died and the petitioner Ramakka received injuries. The petitioners have also examined one V. Thirmmanna, who is stated to be the direct eye witness to the accident, as PW 2.

4. Considering the evidence, both oral and documentary, adduced on behalf of the petitioners, particularly the evidence of the direct eye witness P.W 2, the lower tribunal came to the conclusion that the accident took place due to the rash and negligent driving of the driver of the tractor which resulted in death of the three persons and injuries to Ramakka. Ultimately, after considering the age and earning capacity of the deceased and also the nature of injuries sustained by the injured Ramakka, the lower tribunal awarded a total compensation of Rs. 35,000/- in favour of the petitioners in O.P No. 208 of 1988, Rs. 36,500/- in favour of the petitioners in O.P No. 206 of 1988, Rs. 38,000/- in favour of the petitioners in O.P No. 207 of 1988 and Rs. 25,000/- in favour of the petitioner in O.P No. 205 of 1988. Having been aggrieved by the grant of respective compensation amounts, the 3rd respondent-insurance company have preferred the present appeal.

5. So far as the rashness and negligence on the part of the 1st respondent-driver in driving the vehicle in question at the time of the accident is concerned, there is the direct testimony of P.W 2 in each case, besides the evidence of P.W 1 Ramakka, who is the injured person, which clearly establishes the rash and negligent driving of the vehicle by the 1st respondent. With regard to the quantum of compensation also after duly taking into account the earning capacity of the respective deceased and also the injured Ramakka and their respective ages, the lower tribunal has granted various amounts as mentioned above. On an independent appraisal of the entire evidence on record, I too see no ground to interfere with the findings of the lower tribunal. In fact, the Insurance company also did not seriously contest the matters on these aspects of the matter.

6. The main thrust of the argument advanced by Sri S. Hanumaiah, learned counsel appearing for the appellants-Insurance company is that the 1st respondent is not holding a valid driving licence as on the date of accident thereby the 2nd respondent-owner has violated the conditions of the policy and so the 3rd respondent-insurance company is not liable to pay the compensation. To prove this contention, the burden heavily lies on the insurance company. We have to see whether the Insurance Company has discharged the burden cast upon it. In this connection, relying upon the decisions of the Supreme Court, Madhya Pradesh and Madras High Courts reported in Narcinva V. Kainat v. Alfredo Antonio Deo Martins, AIR 1985 SC 1281 : 1985 ACJ 397 (SC) and Karan Singh v. Manoharlal, 1989 ACJ 177 and New India Assurance Co. Ltd. v. C.B. Shankar, 1986 ACJ 82, Sri C. Sadasiva Reddy, learned counsel appearing on behalf of the claimants in all the appeals vehemently contended that when the insurance company complains of a breach of the terms of contract, the burden is squarely on the insurance company to prove that the breach has been committed by the other party to the contract. According to the learned counsel Sri C. Sadasiva Reddy, the Insurance Company did not discharge the burden cast upon it and so it cannot disown its liability to pay the compensation.

7. In Narcinva V. Kamat v. Alfredo Antonio Martins (AIR 1985 SC 1281), referred to above, while considering the burden of proof and liability of the insurance company, the Supreme Court observed as follows:—

“When the insurance company complains breach of the terms of contract, which would permit it to disown its liability under, the contract of insurance, the burden is squarely on the insurance company to prove that the breach has been committed by the other party to the contract. The test in such a situation would be ‘who would fail, if no such evidence is led’. With this principle of law in view the evidence has to be judged. Merely non-production of licence or non-examination of the driver of the vehicle is not enough nor any adverse inference can be drawn against the person holding that because of non-examination of the driver or non-production of the licence, the burden is discharged by a mere question in cross-examination nor the owner is under any obligation to furnish the evidence so as to enable the insurance company not to riggle out its liability under the contract of insurance. However, the R.T.A, who issues the driving licence, keeps record of the licence issued and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Not only this, no enquiries were made by the insurance company from the R.T.A concerned regarding the fact of issue of a driving licence to Manoharlal. Hence, it would not give rise to an adverse inference about respondent No. 1 being an unauthorised driver.”

Following the above judgment of the Supreme Court, the High Court of Madhya Pradesh, Indore Bench in Karan Singh v. Manoharlal, 1989 ACJ 177, referred to above, observed that as the driver was not examined and as the insurance company did not call any record of the R.T.A or any other evidence to establish that the driver had no driving licence, the insurance company has failed to discharge its burden by leading legal evidence. In New India Assurance Co. Ltd. v. C.B. Shankar, 1986 ACJ 821 (supra), referred to above, its was observed by the Madras High Court that in order to escape the liability, the insurance company is not only required to prove that the driver was not holding licence at the time of accident but also to prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all.

8. Mere mention in the criminal court's judgment about the driver not having a licence, muchless a valid driving licence is not sufficient. It is well established legal principle that the findings given in criminal court judgments cannot be taken and cannot be taken advantage in civil matters. As seen from the above pronouncements of the Supreme Court and other High Courts, the best method is to summon the driver to produce the driving licence, and also to take appropriate steps to examine him. If the driver and the owner of the offending vehicle remain ex parte, a duty is cast upon the court on the application of the insurance company to take appropriate steps to summon the driver and examine him. If the driver is summoned and if he has produced the driving licence it is sufficient. If he did not respond to the summons and did not appear nor did he produce the driving licence, an adverse inference can be drawn that he was not holding a valid driving licence. It is also the duty of the Insurance Company to summon the R.T.A officials to produce the driving licence as the R.T.A who issues the driving licence keeps record of the licence issue and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Either of the above two steps has not been taken by the insurance company. As already stated, if the driver, in spite of receipt of summons, has not been present and subjected himself for examination, the court is entitled to draw adverse inference. Whether a driver is having a valid driving licence or not is within the exclusive knowledge of the driver himself or at certain times the owner of the vehicle will be having that information as he is expected to know before he is taken as driver. The insurance company did not take any effective steps to discharge the burden. It is the case of the insurance company that one Adhinarayana Setty was appointed as investigating officer and he submitted his report Ex. B.6 Without examining the said Administrative Officer, his report, marked through another person, cannot be given due weight. The mere filing of the report of the Administrative Officer, without examining him, does not absolve the responsibility of the insurance company in discharging the burden. From the above discussion, I am of the opinion that the insurance company has not discharged its burden by leading legal evidence. Under the umbrella of Ex. B.1 policy it cannot take shelter and claim that it has discharged its burden cast upon it.

9. At the end of the arguments, Sri S. Hanumaiah, learned counsel appearing on behalf of the insurance company submits that the matter may be remanded back to the lower tribunal giving an opportunity to the insurance company to take steps to summon the driver and the R.T.A people. It is too late in the day to make such a request. The accident had occurred as long back as on 6-5-1988. Further, at this length of time the insurance company cannot be allowed to fill up the lacunae. The lower tribunal has rightly considered the legal position and ultimately awarded various amounts of compensation to the petitioner.

10. In view of the above discussion, I do not see any reason to interfere with the judgments of the lower tribunal.

11. In the result, all the C.M.As are dismissed. No costs.

Appeals dismissed.