G.M Lodha, J.:— This is an appeal under sec. 110-D of the Motor Vehicles Act, 1939 against the award of Motor Accident Claims Tribunal, Jaipur dated 2nd of April, 1979 in case No. 47 of 1977.

2. The facts of the case are that on 30-5-74 a Taxi Car No. 7425 proceeded from Bus stand Jaipur with six passengers for Ajmer at about 10.50 p.m Near Dudu, the driver who was driving the vehicle rashly, lost control and dashed with some tree. Mohan Lal, Noratmal and Ramcharan died as a result of this accident on the spot and Chiranji Lal was seriously injured. Three claim petitions were filed before the Tribunal and all the three have been decided by this judgment. The Tribunal has awarded Rs. 1,12,000/- in claim petition No. 45 of 1977, Rs. 1,00,000/- in claim petition No. 46 of 1977 and Rs. 1,49,000/- in claim petition No. 47 of 1977. This appeal relates to the award in claim petition No. 47 of 1977 only and has been filed by the New India Assurance Company Ltd. Sansar Chand Road, Jaipur.

3. Mr. Bhargava, learned counsel for the Insurance Company has argued that since the claimants have filed to prove that the driver of the vehicle had a valid licence at the time of the accident no liability can be fastened on the Insurance Company as per the terms of the Insurance Policy. The finding of the Tribunal that Insurance Company has failed to prove that the driver in this case had no valid licence, is being assailed on the ground that the burden of proof was on the claimants. According to Mr. Bhargava, the Tribunal has committed serious error in treating that it was for the Insurance Company to have proved that the driver had no licence and then decided this point against the Insurance Company holding that the Insurance Company had failed to prove and discharge the burden in this respect.

4. Mr. Bhargava reliedupoa the judgment of Madhya Pradesh High Court in Anand Insurance Company v. Hasan Ali (1).

5. I have carefully considered the above submissions of Mr. Bhargava, Sub-Clause (2) of sec. 96 of the Motor Vehicles Act, is as under:

“Sec. 96(b) — That there has been a breach of a specified condition of the policy being one of the following conditions namely:—

(i) condition excluding the use of the vehicle—

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle no covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side car being attached, where the vehicles is a motor cycle; or”

This provides special ground on which the Insurance Company can escape its liability for payment.

6. The Tribunal in the instant case has held that the burden to prove that the driver had no valid licence at the time of accident, is on the Insurance Company. It has relied upon the judgment Karnataka and Patna High Courts.

7. The Patna High Court in Jogindra Kuer v. Jagdish Singh(2) held as under:

“Section 96 Motor Vehicles Act, 1939 lays down the duty of insurers to satisfy judgments againts persons insured in respect of third party risks. Insurance company can be made a party to the proceedings in order to enable it to safeguard its interest and it is open to it to defend the action on grounds mentioned in sub-sec. (2)(a) and (b) of sec. 96 of the Motor Vehicles Act, 1939, Clause (b) of Sub-Sec. (2) of sec. 96 provides that if there is a breach of the specified condition of the policy, that can be a valid defence in an action against the insurer for damages. One of the conditions is that the vehicle insured should not be driven by a person who was not duly licenced, vide sub-clause II of sub-sec. (2)(b) of sec. 96.

Where the Insurance Company takes the plea with regard to breach of the terms of the policy contending that the driver of the insured vehicle was not duly licensed or was disqualified for holding or obtaining a licence the onus lies upon the company to establish its allegations.”

Relevant observations have been placed in para 9 which is as under:

“According to this proviso, even if a person held a licence and was not disqualified for holding or obtaining such a licence, he was competent to drive the vehicle in question. It was open to defendant 4 (Insurance Company) to make enquiries and ascertain as to whether defendant 3 had been disqualified from getting renewal of the licence but no step seems to have been taken in that direction. The fact that defendant 3 hold a licence and it was sent for renewal cannot be denied in view of Ext. 8. But the question is, as to whether he was disqualified on the 9th January, 1954, for holding a licence. Defendant 4 having taken a plea with regard to the breach of the terms of the policy, onus lay upon it to establish that defendant 3 was disqualified but that onus has not been discharged. Proper materials in this respect are lacking and have not been produced before the Court. In such circumstances, it cannot be held that there was any breach of the term of the policy in this respect.”

8. In the Madhya Pradesh High Court case relied upon by Mr. Bhargava, a licence was produced before the Court which was a learning driving licence for driving light motor vehicle and the accident was caused by the dirver while he was driving a truck which is a heavy motor vehicle. The basic question considered preliminary to the question of burden of proof was whether a light motor vehicle includes a truck. It was noted by the Court that the Insurance company has specifically pleaded that the driver of the truck was a person not authorised to drive the truck he had no licence for driving heavy motor vehicle. Since the document produced by the respondent No. 4 driver, was a certificate showing that it had at the material portion a learner's licence for driving a light motor vehicle, and this did not include the truck in question, court was of the opinion that it was for the driver to show that he had a valid licence for driving a heavy motor vehicle i.e a truck. The reason given for this view was that the Insurance company cannot be expected to call for the record of the Regional Transport Authority of each and every place in the country. In this case earlier view of the Madhya Pradesh High Court in Shantibai v. The Principal, Govindram Sakseria Technological Institute Indore (3) was distinguished. In Shantibai's case (supra) another division bench of the Madhya Pradesh High Court has held as under:

“Section 96(2) of the Motor Vehicles Act provides defences to an Insurance Company. If an Insurance Company wants to escape liability on anyone of the grounds of defences laid down in the said section, exemption specifically and to prove it.”

This case was distinguished in the later judgment by another division bench on the ground that in the earlier judgment, there was no pleading on behalf of the Insurance Company on the point. The distinction drawn on the point of pleadings is based on the following observations in para No. 11:

“Neither the Insurance Company nor the respondent No. 1 raised any plea to that effect in their replies submitted before the Tribunal.” However, the judgment, proceeds further to examine the question of burden of proof and the relevant portion in para No. 11 is as under:

“Mr. Johar, appearing for the Insurance Company, contended that the burden of proving that the vehicle was being driven by a licensed driver lay on the appellants. This contention cannot also be accepted. Section 96(2) of the Motor Vehicles Act provides defences available to the Insurance Company, and if the Insurance Company wanted to escape the liability on any of these grounds of defence, it was for the Insurance Company to plead exemption specifically and to prove it. In absence of any plea or proof by the Insurance Company, it cannot be held that the respondent No. 2, who was driving the vehicle at the relevant time, was not person holding a valid driving licence. In this view of the matter we are supported by a decision of the Bombay High Court in Pesumal v. New Asiatic Insurance Co.”

8. The question which comes for determination is whether the Insurance Company can escape the liability on account of any of the defences available to it under Section 96(2) of the Motor Vehicles Act, simply by pleading it and the burden for proving the absence of those defence is on the claimant. The judgment of the Madhya Pradesh High Court certainly supports the view which Mr. Bhargava wants to canvass before this Court. However, that is based on a very thin reason, namely, that the Insurance Company cannot be expected to find out from the registering offices of all the States whether a driving licence was being held by the driver or not at the relevant time. The above can only be one of the methods of proving or disproving the facts, but cannot be the only method for it. The evidence of both the parties on the issue, if raised, is to be weighted and the mere non-production of the record of the registration authority may not lead to an adverse inference against the Insurance Company. However, on that count alone, it cannot be said that the burden would lie on the claimant. The violation of the clauses of Insurance Policy are the special defences open to the Insurance Company which under the Law is normally liable to compensate the owner to a limited extent only. In other words, these are exceptions to the general rule, that the Insurance Company is liable to compensate the owner for the accident liability for a limited extent. That being so, these are the special defences for the Insurance Company only and normally it would be for the Insurance Company to prove those defences both in law and on facts. In that view of the matter, I am of the opinion that the view taken by the Karnataka High Court, Patna and Bombay High Courts and also the Madhya Pradesh High Court in the earlier case of Shanti Bai (2), laid down correct principle of law on the question of burden of proof in this respect.

9. In the instant case an additional reason for maintaining the finding of the Tribunal is that the Insurance Company did take the objection in the pleadings but did not take any steps to get an issue framed on the point. The Insurance Company wanted to come within the exception of the clauses of clause (2) of section 96, and therefore, it was for the Company to have drawn the attention of the Tribunal and taken appropriate steps for getting an issue framed on the point of absence of the driver's valid licence at the time of accident. This having not been done by the Insurance Company, the Tribunal was neither required to give a specific finding on this point nor the parties were required to lead evidence, although some evidence has been recorded in this respect on behalf of the Insurance Company.

10. Since, I am of the view that the burden was on the Insurance Company and since I have hold that the absence of the issue on this point and absence of evidence, and not taking of any steps on behalf of the Insurance Company to get an issue framed on this point, are fatal, so far as the said defence of the Insurance Company is concerned, the finding of the Tribunal appears to be just and calls for no interference?

11. The appeal, therefore, fails and is here by dismissed.