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2008 DIGILAW 2545 (RAJ)

New India Assurance Company Ltd. v. Jugraj Singh

2008-11-19

NARENDRA KUMAR JAIN

body2008
JUDGMENT 1. - Heard learned counsel for the parties.The claimant-respondent No.1 filed an application before the Motor Accident Claims Tribunal, Baran, for compensation u/s 166 of the Motor Vehicles Act, 1988, in respect of injuries sustained by him in motor accident which took place on 18.2.1996. The non-claimant No.1, owner and driver of the vehicle, .filed written reply to the claim application. The New India Assurance Company, non-claimant No.2 also filed separate reply to the claim application where a specific objection was taken that the driver of the vehicle was not having a valid and effective driving license. There is a breach of terms and conditions of the insurance policy, hence the Insurance Company is not liable to indemnify the liability of the owner of the vehicle. The Tribunal framed four issues. Both the parties led their oral and documentary evidence. The learned Tribunal vide its award dated 23.9.1997 decided the issues in favour of the claimants and against the non-claimants. The issue No.3 relating to violation of terms and conditions of the insurance policy, was also decided against the Insurance Company. The Tribunal allowed the total compensation of Rs.1,08,000/- in favour of the claimants with interest at the rate of 12% per annum from the date of claim application i.e. 28.11.1996. Being aggrieved with the same, the New India Assurance Company has preferred this appeal before this court. 2. The only contention of the learned counsel for the appellant is that the learned Tribunal committed an illegality in fastening the liability to pay the amount of compensation on the Insurance company whereas the driver of the vehicle was not holding a valid and effective driving license. He contended that the driving license was issued for the period from 23.8.96 to 22.2.1997, whereas the accident took place on 18.2.1996 much prior before issuance of driving license. He, therefore, contended that the finding of the learned Tribunal in respect of issue No.3 is liable to be set aside and the appellant Company is liable to be exonerated from its liability to pay the compensation. 3. No one is present on behalf of the claimant-respondent No.1 despite service of notice. Mr. Ashish Sharma appears on behalf of the respondent No.3, United India Insurance Company Ltd which has already been exonerated from the liability in the case. 4. 3. No one is present on behalf of the claimant-respondent No.1 despite service of notice. Mr. Ashish Sharma appears on behalf of the respondent No.3, United India Insurance Company Ltd which has already been exonerated from the liability in the case. 4. I have considered the submissions of the learned counsel for the appellant and examined the impugned award as well as record of the Tribunal. The learned Tribunal while deciding issue No.3, has observed that driving license of the driver Ex. A-1, was issued for the period from 23.8.96 to 22.2.1997, whereas the accident took place on 18.2.1996. However, in the insurance cover note Ex 7 placed on record, the terms and conditions No.1 to 3 were not mentioned meaning thereby, there was no term and condition to the effect that the insurance company will not be liable if the driver does not possess the valid and effective driving license. In these circumstances, in the absence of any specific terms and conditions in the insurance cover note Ex.7, the learned Tribunal did not exonerate the appellant Company from its liability. It is relevant to mention that during the course of the arguments, the learned counsel for appellant Mr. Agarwal admitted that the insurance cover note which was marked as Ex. 7 in the present case does not reveal any term or condition about holding of valid and effective deriving license by the driver. He further admits that the insurance policy was not exhibited in the case by the insurance company nor any one was examined orally to prove and exhibit Insurance Policy or any contrary document in this regard. The proceedings of the Tribunal show that issues were framed in the case on 5.7.1997 and on that date itself, the claimant examined AW 1 and AW 2 and closed his evidence and thereafter the case was fixed on 24.7.97 for non-claimant's ,evidence. On that day, no oral or documentary evidence was adduced on behalf of the non-claimants. The case was again fixed for 4.8.97 but no witness was present on behalf of any of the non-claimants. The matter was again adjourned on 21.8.97 and further on 28.8.97 but on that day also, no witness was present on behalf of any of the non-claimants nor any reason whatsoever was disclosed for the same and thereafter the evidence of non-claimants was closed and the case was fixed for final arguments. The matter was again adjourned on 21.8.97 and further on 28.8.97 but on that day also, no witness was present on behalf of any of the non-claimants nor any reason whatsoever was disclosed for the same and thereafter the evidence of non-claimants was closed and the case was fixed for final arguments. The said order closing the evidence, was not challenged by any of the non-claimants including the present appellant. The learned counsel for the appellant admits that interim order dated 28.8.97 closing the evidence of the 5 non- claimants, has also not been challenged in the memo of appeal filed before this court. In these circumstances, it is clear that only one document i.e. Ex 7 insurance cover note was available on record wherein no such terms and conditions were mentioned and in absence of it, it cannot be said that there is breach of term and condition so as to exonerate the insurance company (appellant) from its liability. It is relevant to mention that the insurance company did not examine any witness in the Tribunal nor produced any application seeking permission to exhibit the Insurance Policy containing the terms and conditions on record and to admit the same in evidence. The appeal was preferred before this court on 20.11.1997 but no such application ,was filed before this court along with memo of appeal, the appeal remained pending for about 11 years and till date, no such application has been filed before this court. In these circumstances, there is no legal material to hold that there is a term and condition about holding of valid driving license, which can be said to have been breached or violated. The learned counsel for the appellant is unable to point any illegality in the finding of the learned Tribunal in respect of issue No.3 on the basis of any oral or documentary evidence adduced in the case. In these circumstances, I do not find any ground for interference in the finding of the learned Tribunal. 5. In view of the above discussions, I do not find any merit in this appeal and the same is accordingly dismissed with no order as to costs.Appeal Dismissed. *******