Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 278 (PNJ)

National Insurance Company Ltd. v. Kalawanti Devi

2004-03-09

KIRAN ANAND LALL, S.S.NIJJAR

body2004
ORDER S.S. Nijjar, J. (Oral) - CM No. 4406-CII/2004 Heard learned Sr. Counsel for the appellant. For the reasons stated in the application, delay of 41 days in refiling the appeal is condoned. CM disposed of. F.A.O. No. 1221 of 2004 2. We have heard the learned Sr. Counsel for the appellant at length and perused the paper-bood. 3. The Motor Accident Claims Tribunal, Ludhiana has clearly held that Ram Bachan died on account of the injuries received by him due to the rash and negligent driving of respondent No. 1, Gurmeet Singh while driving truck No. PB-X-AB-9956. The Tribunal has come to this conclusion on the basis of the eye-witness account of AW2 Shri Kewal. He had clearly deposed that the truck was negligently driven by Gurmeet Singh. The deceased was crushed under the frontal wheel of the truck. He died at the spot. Although Gurmeet Singh, the driver of the offending truck died during the pendency of the claim petition. The Insurance Company did not examine the owner of the truck. The Insurance Company had not adduced any evidence, except for tendering the Insurance Policy. The Tribunal, therefore, in our opinion, has rightly held that the testimony given by the eye-witness, AW2, Shri Kewal stands unrebutted. The Insurance Company has also claimed that the driver of the offending truck did not have a valid driving licence at the time of accident. It was also pleaded that the truck had no valid documents at the time of the accident. Therefore, it was a breach of the terms of the policy. The Tribunal, in our opinion, has rightly observed that it was for the Insurance Company to prove both the pleas put forward. This view of ours finds support from the judgment of the Supreme Court in the case of Narcinva V. Kamat and another v. Alfredo Antonio Deo Martins and others, 1985 ACJ 397. In the aforesaid case, it has been held as follows :- "12. It is contended on behalf of the insurance company that the second appellant did not have a valid driving licence. In the aforesaid case, it has been held as follows :- "12. It is contended on behalf of the insurance company that the second appellant did not have a valid driving licence. It is the insurance company which complains that there has been a breach of one of the important terms of the contract of insurance as evidenced by the policy of insurance (the whole of which was not shown to us) and that the second appellant who was shown to be driving the vehicle at the relevant time, did not have a valid driving licence to drive the pick-up van. 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 to 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. ...." 4. The Insurance Company has adduced no evidence in support of the aforesaid submissions. The Insurance Policy produced in court also showed that the offending truck was insured on the date of the accident. Thereafter, the appellant had also failed to make any application under Section 170 of the Motor Vehicle Act, 1988. In view of the above, we find no merit in the appeal and the same is dismissed. Appeal dismissed.