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2005 DIGILAW 1223 (RAJ)

National Insurance Company Limited v. Sunil Sen

2005-04-26

J.R.GOYAL

body2005
Judgment J.R. Goyal, J.-Aggrieved by the award passed by the Motor Accident Claims Tribunal, Kishangarh, Ajmer dated 26/11/2002 in claim application No. 138/1999 National Insurance Company Ltd., has filed this appeal. 2. Background facts in nut shell are that present respondent No. 1 Sunil Sen filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation from the present appellant M/s. National Insurance Company Ltd., respondent No. 2 Safruddin and respondent No. 3 Sharif Mohd. respectively driver and owner of the Auto-Rikshaw bearing No. RJ -01-P-2036 involved vehicle in the accident. According to the claimant respondent No. 1 Sunil Sen, on 07.06.1999 at about 11:50 a.m. when he was traveling in an Auto-Rikshaw bearing No. RJ-01-P-2923, another Auto-Rikshaw bearing No. RJ-01-P-2036 which came from the opposite direction, hit the Auto-Rikshaw in which the claimant was traveling. As a result of this accident he suffered serious injuries on his person which resulted into 12% permanent disability. It was also alleged that Auto-Rikshaw bearing No. RJ-01-P-2036 coming from opposite direction was solely negligent. 3. Respondent No. 1 Safrudin and respondent No. 2 Sharif Mohd. respectively did not file any reply and exparte proceedings were initiated against them. The appellant-non-claimant Insurance Company filed reply in which it was averred that Auto-Rikshaw No. RJ-01-P-2036 was insured with the ensuing Insurance Company but it was pleaded that on account of breach of condition of the insurance policy, Insurance Company is not liable for any compensation. 4. Learned Tribunal after trial awarded the compensation of Rs. 1,60,000/- (in round figure). 5. Aggrieved by the said award the present appeal has been filed by the Insurance Company. 6. Learned Counsel for the Insurance Company only raised the point that Safruddin driver of the Auto-Rikshaw involved in the accident did not possess valid license, thus on account of breach of the condition of the policy, Insurance Company is not liable for the compensation. It has also been contended that some amount has already been paid to the claimant in compliance of the order, in this situation Insurance Company should be authorised to realise the amount of the award from the insured. In support of the contention, reference has been made to the Judgment delivered in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors., reported in 2004 (3) Supreme Court Cases. 297. 7. In support of the contention, reference has been made to the Judgment delivered in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors., reported in 2004 (3) Supreme Court Cases. 297. 7. Learned Counsel for the respondent-claimant contended that it was the duty of the Insurance Company to prove that there was a breach of condition of license but in this case the witnesses of the National Insurance Company Mahesh Kumar (NAW1) and Mahitosh (NAW 2) showed their ignorance about the renewal of the license of driver Safruddin from some other district. It was also contended that Shri Ramswaroop (NAW 3), employee of the R.T.O. Office, Chittorgarh, admitted that license of Safruddin was renewed after 1990 from some other transport office, thus, it cannot be said that there was any breach of condition and learned Tribunal rightly awarded the compensation. 8. I have considered the rival contentions and perused the entire record. It is settled proposition of law that if there is breach of condition of the policy, the Insurance Company cannot be held liable for payment of compensation. This position is also settled that once the assured proves that the accident is covered by the insurance clause, it is for the insurer to prove that it comes within exception clause provided under Sections 149(2) (a) or (b) of the Motor Vehicles Act, 1988. In the event the Insurance Company fails to prove that there has been breach of condition of policy on the part of the insured, the Insurance Company cannot be absolved of its liability. The Honble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors. In the event the Insurance Company fails to prove that there has been breach of condition of policy on the part of the insured, the Insurance Company cannot be absolved of its liability. The Honble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors. case (Supra) in para 48 observed that "Furthermore, the Insurance Company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2) (a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured." In para 51 it was also observed that "It is trite that where the insurers, relying upon the provisions of violation of law by the assured, take an exception to pay the assured or a third party, they must prove wilful violation of the law by the assured." On scanning the material and evidence in the light of the above observations of the Apex Court, it transpires that the appellant National Insurance Company not only failed to prove the factum that insured has made wilful breach of the condition of the policy but also failed to prove the fact that respondent-driver Safruddin was not possessing the valid license at the time of the accident. In this context, the evidence of the witnesses namely Mahesh Kumar (NAW1), Mahitosh (NAW2) and Ramswaroop (NAW3) produced by the Insurance Company would be very much relevant. Mahesh Kumar (NAW1) who was the Assistant Manager, National Insurance Company, Branch Kishangarh admits that policy NA1 was issued from his branch office. He further deposed that they inquired and found that the driver was not having valid license on the day of accident. In cross-examination, he admitted that he did not see driving license nor he went to RTO Office, Chittorgarh. Investigation work was carried out by their Investigator. He further admitted that he cannot say anything if driving license was renewed from any other office than of Chittorgarh after 07/06/1990. Mahitosh (NAW 2), who was Investigator, deputed by the Insurance Company, deposed that he went in the office of licensing authority, Chittorgarh and verified the facts. Investigation work was carried out by their Investigator. He further admitted that he cannot say anything if driving license was renewed from any other office than of Chittorgarh after 07/06/1990. Mahitosh (NAW 2), who was Investigator, deputed by the Insurance Company, deposed that he went in the office of licensing authority, Chittorgarh and verified the facts. He found that driving license No. 13469 was issued from licensing authority, Chittorgarh which was valid from 08/06/1987 to 07/06/1990, thereafter it was not renewed, but in cross-examination, he stated that he has no knowledge if license was renewed from any other district. Ramswaroop (NAW 3) who was an employee of R.T.O. Office, Chittorgarh proved the record of driving license No. 13469 issued in the name of Safruddin S/o Zahoor Mohd. and deposed that license was valid from 08/06/1987 to 07/06/1990 which was not renewed, but in cross-examination he admitted that once driving license is issued from one office in Rajasthan, may be renewed from the office of the transport department of any other district. He further admitted that the said license was renewed from any other transport office after 1990. 9. Consequently, in view of the entire discussion made hereinabove, the appeal filed by the Insurance Company has no merit and is hereby dismissed.