1990 INSC 0338
                                               Suresh Mohan Chopra

                                                           Vs

                                          Lakhi Prabh Dayal and Others

                 Civil Appeal No. 3723 of 1990 (Arising out of S.L.P. No. 678 of 1988)

                                          (N. D. Ojha, S. C. Agarwal JJ)

                                                      30.07.1990

                                                        ORDER

1. Heard learned counsel for the parties.

2. Special leave granted. The appeal is taken up for final hearing with the consent of learned counsel
for the parties.

3. The appellant filed a claim for compensation on account of injuries received by him in an
accident which took place on November 30, 1977. On that date, the appellant was going on his
scooter which met with an accident with a motorcycle which was being driven by respondent 1 and
was owned by respondent 2. The Tribunal awarded a sum of Rs. 30,000 as compensation to the
appellant against respondents 1 and 2, namely, the driver and owner of the motorcyle as also against
the New India Assurance Company Limited-respondent 3 with whom according to the appellant the
motorcycle stood insured at the time of the accident.

4. Aggrieved by the award of the Tribunal, the Insurance Company preferred an appeal before the
High Court which was allowed and the award as against the Insurance Company has been set aside.
The High Court has taken the view that it had not been established that respondent 1 had a driving
licence at the time of the accident and consequently the Insurance Company could not be held
liable.

5. The appellant has challenged the judgment of the High Court in the present appeal on the ground
that the finding of the Tribunal that respondent 1 had a driving licence at the relevant time could not
in law, on the facts of the instant case, be reversed by the High Court.

6. Having heard learned counsel for the parties, we are of the opinion that there is substance in the
submission made by the learned counsel for the appellant. In the instant case, the driver-respondent
1 had been produced as its witness by the Insurance Company itself and he categorically stated that
he had a driving licence at the relevant time issued by the Transport Authority at Rajpur Road in
1977. It is true that the driving licence itself was not produced by respondent I but his explanation in
this regard was that the same being for one year only he had destroyed it after the expiry of that
period. No evidence was produced to show that this explanation was wrong. Further, no other
evidence was produced on behalf of the Insurance Company on which, admittedly, the burden off
proof lay in support of the plea raised by it that respondent 1 had no driving licence at the relevant
time on the basis of which it could be held that the said respondent did not have a driving licence.
No record or even a certificate was produced from the Transport Authority indicating that in 1977
no licence was granted to respondent 1. In this state of evidence and particularly when the driver
was a witness of the Insurance Company itself, there was no alternative for the Tribunal but to
accept the statement of the driver that he had a licence at the relevant time and the High Court
apparently committed an error of law in reversing the finding of the Tribunal simply because the
driving licence was not produced.
7. In the result, this appeal succeeds and is allowed. The judgment of the High Court dismissing the
claim of the appellant as against the Insurance Company - respondent 3 is set aside and the award of
the Tribunal is restored. The appellant shall be entitled to his costs.

</html