V. Ramaswami, J.

1. These two appeals have been preferred against a common order in O.P 122 and 123 of 1982 on the file of the Additional Motor Accidents Claims Tribunal (Court of Small Causes), Madras. Due to a collision between a scooter TMP 2939 and a taxi MSV 5202, the driver of the scooter and the pillion rider, a minor son of the scooter driver, were injured. Two claim petitions were filed, one by the scooter driver and the other on behalf of the pillion rider, the minor son of the scooter driver. The scooter driver claimed Rs. 25,000 as compensation for the injuries sustained by him, while on behalf of the pillion rider, a petition claiming compensation of Rs. 5,000 for the injuries sustained by the minor was filed. The Motor Accidents Claims Tribunal held that the accident was due to the rash and negligent driving of the taxi and that the claimants are entitled to the compensation. However, the Tribunal held that the scooter driver was entitled to a sum of Rs. 9,630 and the pillion rider was entitled to a sum of Rs. 2,200 only. It is against this award, the present two appeals have been filed.

2. The appellant does not dispute in these appeals that the accident was caused by the rash and negligent driving of the taxi driver. Nor does the appellant question the quantum of compensation awarded by the Tribunal. But the appellant contended that the Insurance Company was not liable at all for the reason that the driver of the taxi did not have a driving licence and that, therefore, the Insurance Company could not be held liable.

3. It is in evidence that the driver of the taxi was charged under S. 3 read with S. 2(21) of the Motor Vehicles Act, in C.C 11634 of 1981 on the file of the V Metropolitan Magistrate's court, Egmore, and the owner of the vehicle was charged under S. 5 in the same proceeding Both pleaded guilty and they were convicted. Under the Proviso to S. 96(2)(b)(ii), the Insurance Company would not be liable unless “the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence’. There could be no doubt, therefore, that in order to escape the liability not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the Insurance Company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely proving that on the date of the accident the driver did not have a licence and that he pleaded guilty and was convicted tn the criminal Court, itself is not enough to hold that the Insurance Company is not liable for the claim. It has been held by a Division Bench of this Court also in the decision reported in National Insurance Co. Ltd.1 v. Sugantha Kunthalambal, that the onus of proving that the driver of the vehicle never bad a licence or was disqualified from holding a licence is on the Insurance Company.

4. We have therefore to see whether the Insurance Company in this case has discharged that onus. The circumstances relied on in this connection by the learned counsel for the Insurance Company is that they issued a notice to the owner of the vehicle and the advocate appearing for the owner of the vehicle to cause the production of the driver's licence and that they failed to do so. From this itself we cannot hold that either the Insurance Company has discharged its onus or has taken all the steps that are needed to prove that the driver had no licence at any time or that he was disqualified from driving. It is not disputed that the insurance Company was aware of the Dame and address of the driver. In fact, the address was available in all the proceedings in respect of this accident. However, as admitted by R.W 1, the Senior Assistant of the Company, who came and gave evidence on behalf of the Company, the investigator did not contact the driver of the vehicle, nor did they issue any notice to the driver calling upon him to produce the driving licence, if the driver had any. They could have also taken out a petition before the Tribunal itself to summon the production of the driving licence. That also has not been done. On the other hand we find that R.W 3 the owner of the vehicle, in his evidence stated that the driver was under his employment for over 2½ years prior to the accident and during that time he had a driving licence. He had also stated that immediately after the accident, he left his services and he could not contact him thereafter. Though he had specifically stated that the driver had a driving licence, there was no cross-examination of the owner in this regard, as to whether be had seen the driving licence or on any other aspect. It may also be mentioned that normally one is not expected to drive for such a long period as 2½ years without a licence at all, particularly a taxi in the Metropolitan city of Madras. We may also note that it is not disputed that he had been in the employment of R.W 3 as driver for 2½ years. In the circumstances, therefore, we are not persuaded to hold that the Insurance Company had discharged its onus of proving that the driver never had a licence or was disqualified from holding a licence. It is not the case of the Insurance Company that the nature of things is such that we can presume that the driver could not have had any licence at all. The driver was not shown to be a minor or any other person with legal infirmity who could not hold any driving licence at all for any reason. In the circumstances, therefore, we agree with the order of the Tribunal that the Insurance Company is liable for the amount awarded. The appeals accordingly fail and they are dismissed with costs. Counsel's fee one set in C.M.A No. 264 of 1984.

VCS.