R.K Patra, J.:— The insurer-appellant challenges the award of the Second Motor Accidents Claims Tribunal by which it has directed it (appellant) to pay compensation of Rs. 75,000/- to the respondent Nos. 1, 2 and 5.
2. The deceased was Attaullah Khan. At the relevant time he was working as a watch repairer under Utkal Watch Company, Dolamundai, Cuttack. On 13.1.1985 at about 6 a.m while he was returning from milk centre with a can of milk in his hand on the left side of the road, the truck bearing registration No. ORU 3289 belonging to respondent No. 6 came at high speed and knocked him down near the mosque at Jobra as a result of which he sustained severe injuries. He was removed to the S.C.B Medical College and Hospital, Cuttack, where he succumbed to the injuries. The respondent No. 2 is the widow of the deceased Attaullah Khan.
3. Respondent No. 1 is his son and respondent Nos. 3 and 5 are his daughters. Alleging that the accident took place due to the rash and negligent driving of the driver of the truck, they filed an application claiming compensation of Rs. 98,735/- from the appellant and respondent No. 6. The owner of the truck, i.e, respondent No. 6 did not contest the case and was set ex parte. The appellant contested the matter. In its written statement, it, inter alia, insisted upon calling the owner of the truck to produce the driving licence of the driver who was driving the vehicle at the time of accident. It was stated in the written statement that on the failure of the owner to do so, it should be presumed that there was statutory violation of the condition as contemplated under section 96(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as ‘the Act’).
4. On the basis of the evidence adduced in the case, the Tribunal awarded a sum of Rs. 75,000/- with interest at the rate of 6 per cent per annum from 26.2.1986 It further held that respondent Nos. 1, 2 and 5 are entitled to the said compensation and respondent Nos. 3 and 4 (Mamataz Begum and Sainaj Begum) are not entitled to any compensation, they having already married. The Tribunal held that insurance policy, Exh. A, covers the case and accordingly saddled the entire compensation on the appellant.
5. Mr. A.K Mohanty, learned counsel for the appellant, contended that as the offending vehicle was driven by a person who had no driving licence at the time of accident, no liability can be fastened on the appellant in view of section 96(2)(b)(ii) of the Act. In this connection, he has placed reliance on the judgment of the Supreme Court in Kashiram Yadav v. Oriental Fire and General Insurance Co. Ltd., 1989 ACJ 1078 (SC). Mr. R.N Mohanty, learned counsel for the respondent No. 2, relying on another judgment of the Supreme Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ 411 (SC), submitted that the insurer alone would be liable to pay the awarded amount even though the offending vehicle was not driven by a licensed driver. Mr. B.N Mohanty appearing for the owner, respondent No. 6, reiterated the submission made by Mr. R.N Mohanty.
6. In view of the rival contentions of the parties, it is necessary to find out as to who was driving the vehicle at the time of the accident. Sub-section (2) of section 96 of the Act enumerates different grounds of defence available to an insurer, one of it being that the vehicle was used by a person who was not duly licensed [vide section 96(2)(b)(ii)]. In order to escape the liability on any one of the grounds of defence, it is for the insurer to plead exemption specifically and to prove it. In the absence of any pleading or proof by the insurance company, it cannot be held that the person who was driving the vehicle at the relevant time was not holding a valid driving licence. In Narcinva V. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC), the Supreme Court observed in para 12 of the judgment as follows:
“…The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract not to perform the contract, the burden is squarely on that party which complains of breach 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 evidence is led….”
7. In para 15 of the said judgment, the Supreme Court further observed that once the insurance company fails to prove that aspect, its liability under the contract of insurance remains intact and unhampered and is bound to satisfy the award under the comprehensive policy of insurance.
8. The appellant in the present case has not pleaded that the person who was driving the vehicle at the relevant time had no valid licence except that in para 13 of the written statement the appellant had called upon the owner of the offending truck, respondent No. 6, to produce the driving licence of the driver who was driving the vehicle at the time of occurrence. This cannot take the place of specific pleading of proof. No issue was framed by the Tribunal centering around this contention. For this, no fault can be found with the Tribunal because it was for the appellant to plead the specific defence and raise an issue. Besides this, the evidence as to who was driving the offending vehicle at the relevant time is hazy. PW 1 is not a witness to the occurrence. PW 2 was an eyewitness, but in the cross-examination made by the appellant, he stated that he did not mark as to who was the driver at the time of accident. He further stated that the owner had engaged a driver but he cannot name the driver. PW 3 in his examination-in-chief stated that the owner himself was the driver of the offending vehicle. Except this vague statement, there is nothing in his evidence to show as to who was driving the vehicle at the relevant time. From this statement that the owner himself was the driver of the vehicle, it does not follow that the owner was driving the vehicle at the time of accident. PW 4 who is another eyewitness does not breathe a word as to who was driving the vehicle. PW 5 has stated that he was not present at the time of the accident. Exh. 4 is the F.I.R lodged by S.K Rohamat Ali wherein he has stated that while the driver was still at his house, the helper, Ashok Kumar Biswal, without the permission of the driver moved the vehicle and the accident occurred. Exh. 8 is the charge-sheet filed under sections 279/304-A of Indian Penal Code against the said Ashok Kumar Biswal who was shown as absconder. The informant who lodged the F.I.R, Exh. 4, was not examined in the case. The F.I.R being not a substantive evidence, no evidentiary value can be attached to it. The appellant could have examined the said informant and brought out the fact as to who was driving the vehicle at the time of the accident. The appellant has failed to establish this crucial fact on the basis of which its contention of liability now raised in this appeal depends. It being a question of fact for which there is neither pleading nor proof, I am not inclined to examine the contention of the appellant that it is not liable to indemnify because the vehicle was driven by an unlicensed driver.
9. No other contention was raised on behalf of the appellant. I do not find any merit in this appeal which is accordingly dismissed.
10. No costs.
11. Appeal dismissed.