2004 INSC 0198
                                    SUPREME COURT OF INDIA

                                                 Punam Devi

                                                      Vs.

                       Divisional Manager, New India Assuranceco. Limited

                        (S. H. Kapadia, V. N. Khare CJI. and S. B. Sinha JJ.)

                                                 12.02.2004

                                                JUDGMENT

1. In a motor vehicle accident, one Sanjiv Kumar Jha died at the spot. Consequently, the
appellants filed their claims petition before the Motor Accidents Claims Tribunal, Bhagalpur.
Before the Tribunal, the respondent-insurance company neither pleaded nor led any evidence
that the driver of the truck did not have any licence. The Tribunal by an order dated February
12, 1999, gave an award for a sum of Rs.3, 91, 500. Aggrieved, the respondent-insurance
company preferred an appeal before the High Court. A learned single judge of the High
Court dismissed the appeal on the ground that the same was not maintainable. Aggrieved, the
respondent-insurance company further filed a letters patent appeal before the High Court.
The Letters Patent Bench set aside the order of the learned single judge and remitted the
matter back upon framing issues for determination by the single judge. It is against the said
judgment, the appellants are in appeal before us.

2. In National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi1, it was held that the
insurance company cannot challenge the quantum of compensation awarded by the Tribunal.
The only ground open to insurer is contained in section 149(2) of the Motor Vehicles Act, In
National Insurance Co. Ltd. v. Swaran Singh2 this court has held that

        "mere absence, fake or invalid driving licence or disqualification of the driver for
        driving at the relevant time, are not in themselves defences available to the insurer
        against either the insured or the third parties. To avoid its liability towards the
        insured, the insurer has to prove that the insured was guilty of negligence or failed to
        exercise reasonable care in the matter of fulfilling the condition of the policy
        regarding use of vehicles by duly licensed driver or one who was not disqualified to
        drive at the relevant time"

3. In the present case, the insurer has not led any evidence that the driver of the vehicle had
no licence. The burden of proof that the driver had no licence was open to the insurer which
it failed to discharge.

4. In that view of the matter, the Division Bench erred in allowing the letters patent appeal.

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5. We, therefore, set aside the order and judgment of the Division Bench. The appeal is
allowed. There shall be no order as to costs.

12002 (7) SCC 4561
22004 (1) SCALE 1802

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