Research › Search › Judgment

J&K High Court · body

2002 DIGILAW 135 (JK)

New India Assurance Co. Ltd. v. Mohd. Ramzan Bhat

2002-05-03

B.L.BHAT

body2002
1. This appeal is directed against the award passed by M.A.C.T., Srinagar in a claim petition No. 58/94 titled Showkat Ahmad Khan Vs. Mohammad Haneef Malik. The facts leading upto this appeal are that on 31-12-1993 the respondent-driver who was under the employment of the respondent namely Mohammad Ramzan Bhat while driving Vehicle No. 7505 JK-01A a Mini bus rashly and negligently at Nundresh Colony Bemina hit Showkat Ahmad Khan the respondent-claimant as a result of which said Showkat Ahmad Khan sustained injuries on his person which in turn resulted into his permanent disability. A case for offence punishable under section 279, 337 PRC came to be registered against the driver-respondent with Police Station Sherghari under FIR No. 119 of 1994. The claimant injured Showkat Ahmad Khan approached Motor Accidents Claims Tribunal Srinagar through the medium of an application under section 166 seeking compensation in the sum of Rupees four lakhs. The petition came to be resisted by the appellant-respondent Insurance Company. The other respondents choose to remain absent as a result of which the case came to be set ex-parte against them by the Tribunal below. The appellant-Insurance Company resisted the petition by filing their objections wherein they have inter-alia stated that it is liable to pay compensation as the driver of the offending vehicle was not holding an effective driving licence under the terms of the policy of insurance issued by the Company. 2. The parties went to trial with the following issues: 1. Whether on31-12-1993 respondent No. 3 drew the vehicle No. 7505 JK-01 A rashly and negligently and on fast speed and hit the petitioner OPP. 2. What type of injury the petitioner has sustained and what are the effects? OPP. 3. To what amount of compensation the petitioner is entitled to from whom and in what proportion OPP. 4. Whether the respondent No. 3 is not liable to pay compensation on what grounds OPR-3. 5. Whether the compensation claimed is exaggerated? OPR-3. 3. It appears that during the trial of the case, the matter came up before Lokadalat constituted on 31-05-1997, wherein, a settlement was reached in between the parties and the appellant-respondent agreed to pay compensation of Rs. 1,60,000/- to the respondent-claimant subject to the verification of the driving licence of the respondent-driver and accordingly the matter came to be decided by Lokadalat. 1,60,000/- to the respondent-claimant subject to the verification of the driving licence of the respondent-driver and accordingly the matter came to be decided by Lokadalat. It further appears that this settlement before Lokadalat and the order passed thereon came to be set at naught and the file came to be re-opened and proceedings conducted. In a bid to substantiate its case, the petitioner besides examining himself has examined Bilal Ahmad Rather, Tanveer Ahmad, Dr. Mohammad Ramzan, Head Constable Mohammad Abdullah and Bashir Ahmad Rizvi. On the other hand the respondent-insurance company despite giving opportunities did not adduce any evidence in support of its claim and in rebuttal to the claim of the petitioner. The Tribunal on conclusion of the proceedings of the case came to award Rs. 1,92,0007- as compensation which shall be paid by the respondent in the following manner:- i) Respondent driver Rs. 12,000/-. ii) Respondent-owner Rs. 20,000/-. iii) Appellant-respondent-Company rest of the awarded amount. The claimant has been also held entitled to the interest @ 12% from the date of institution of the petition till the final liquidation of the awarded amount. However the interim relief if received by the claimant shall stand deducted from the total amount of the award. 4. Heard learned counsel for the parties. 5. The stand of learned counsel for the appellant is that the driver of the offending vehicle was not holding an effective and valid driving licence on the date of accident in question as a result of which the owner of the offending vehicle has committed breach of said insurance policy as therefore the Insurance Company cannot be saddled with liability to pay the compensation to the claimant. On the other hand the stand of the learned counsel for the respondents is that with respect to the breach of Insurance policy, Tribunal has framed issue No. 3, the burden of which was upon the appellant-respondent-company but the Company has not adducted any evidence in a bid to discharge the onus of proof of the said issue as a result of which they have failed to prove that insured has committed any breach of insurance policy which covered the offending vehicle on the date of accident. 6. Considered the rival contentions of the learned counsel for the parties and have also perused the record of the case. 7. 6. Considered the rival contentions of the learned counsel for the parties and have also perused the record of the case. 7. The appellant Insurance Company has not denied that the offending vehicle was insured with the appellant-company on the date of accident and it is not also denied that the respondent-claimant is a third party and is not the owner of the offending vehicle, as a result of which the appellant-insurance company is statutorily liable to pay compensation to the said claimant. In this behalf reference is made to a case titled as New India Assurance Company Shimla Vs. Kamla, reported in AIR 2001 SC 1419 in which their lordships of the apex court in para 25 of the judgment have held:- The position can be summed up thus: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties. If there was any breach of policy conditions on account of the vehicle being driven without a valid licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to insured to raise it before the Claims Tribunal, in the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants-third parties) from the insured person.� In view of the aforesaid law laid down by the apex court, the claimant-respondent not being the owner of the offending vehicle, being a third party, is entitled to claim the awarded amount by Tribunal below from the appellant-company, as a result of which the appeal in hand is not sustainable against the said respondent claimant. 8. 8. This takes us to consider in view of the said judgment of the apex court as to whether the insurance company is entitled to recover the awarded amount from the insured, the respondent-owner. In this behalf it is pointed out that the Insurance Company has admitted that that offending vehicle was insured with it on the date of accident before Lokadalat constituted on 31-05-1997 but has pleaded that since respondent-driver employed by the insured to drive the insured vehicle was not having an effective and valid licence as a result of which the insured has committed breach of insurance policy. In this behalf the Tribunal, as indicated, came to frame issue No. 3 leaving it to the appellant-respondent to prove it, but as indicated the Insurance Company has not led any evidence in a bid to discharge the onus of proof of this issue nor has it bothered to produce copy of the insurance policy in original which was issued in favour of the insured with respect to the offending vehicle during the year 1994-95 when the accident in question took place. The main thrust of learned counsel for the appellant is that admittedly the respondent-driver on the date of accident was holding a learners driving licence as a result of which the appellant insurer by invoking the contractual clause of the insurance is not liable to indemnify the insured. In this behalf it is observed that as indicated that the insurance company has not even produced the original insurance policy issued with respect to offending vehicle in favour of the insured, not to speak of proving it by adducing evidence in this behalf. This being so the appellant-insurance company has miserably failed to prove breach of contract of insurance clause by the insured-respondent-owner by engaging respondent driver who was holding learners driving licence to drive the offending vehicle on the date of accident.