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Himachal Pradesh High Court · body

2015 DIGILAW 1053 (HP)

Iffco Tokio General Insurance Co. v. Ajay Thakur

2015-08-07

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, J. 1. Subject matter of this appeal is the judgment and award dated 23.05.2008, made by the Motor Accident Claims Tribunal, Fast Track Court, Shimla in MAC No. 32-S/2 of 2005/2004, titled Sh. Ajay Thakur and Another vs. Sh. Jaswinder Singh and Another, for short “the Tribunal” whereby compensation to the tune of Rs. 7,95,000/- with 9% interest per annum was awarded in favour of the claimants and insurer/appellant herein came to be saddled with the liability, hereinafter referred to as “the impugned award” for short, on the grounds taken in the memo of appeal. 2. Owner, driver and claimants have not questioned the impugned award on any ground, thus, it has attained finality so far it relates to them. 3. The appellant/insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. The learned Senior Counsel for the appellant argued that the award is bad and illegal on the following two grounds:- (i) That the driver was not having a valid and effective driving license, at the time of accident. (ii) That there was no insurance policy covering 3rd party risk at the time of the accident. 5. I have gone through the impugned award and have perused the entire record. 6. Before I will deal with ground No. (i), I deem it proper to deal with ground No. (ii). 7. The insurance policy is at page 171 of the record file of the Tribunal, which do disclose that the vehicle was insured from 25.3.2004 to 24.3.2005. According to the learned Senior Counsel for the appellant, the risk was not covered on 24.10.2003 at the time of the accident. The argument is devoid of any force for the reasons that the owner-insured has insured the vehicle in terms of the mandate of the Motor Vehicles Act, for short “the Act” with the Iffco Tokio General Insurance Company, i.e., the appellant herein right from he has purchased the vehicle. The cover note is at page 50 of the record file of the Tribunal, which do disclose that the vehicle was insured w.e.f. 21.1.2003 to 20.1.2004. 8. Having said so, the vehicle was insured and the risk was covered. Accordingly, the ground taken by the learned counsel for the appellant is turned down. 9. The cover note is at page 50 of the record file of the Tribunal, which do disclose that the vehicle was insured w.e.f. 21.1.2003 to 20.1.2004. 8. Having said so, the vehicle was insured and the risk was covered. Accordingly, the ground taken by the learned counsel for the appellant is turned down. 9. Now, coming to first ground, was specifically taken before the learned Tribunal and issue No. 4 was framed and onus was on the insurer/appellant. It was for the insurer-appellant to lead evidence, failed to do so. Thus, failed to discharge the onus. Not only it has failed to discharge the onus but has not pressed the said issue before the Tribunal and the Tribunal recorded that the insurer has not pressed issue No.4. Accordingly, it was decided in favour of the claimants, owner, driver and against the insurer, as not pressed. 10. The appellant has not questioned the statement of the learned counsel for the insurer who has made such statement before the Tribunal and has not questioned the impugned judgment so far it relates to issue No. 4. However, on going through the driving license, it appears that the driving license was valid w.e.f. 15.6.1989 to 14.6.1992. It was also valid upto 14.6.2001 and from 5.5.2005 to 21.5.2008. The renewal order is not on the file. It is not known from which date the renewal order was effective. It was the duty of the insurer to prove that the driving license was not effective from 14.6.2001 to 5.5.2005. It was for the insurer to send for the record but has not led any evidence and even at the cost of repetition, it has not pressed the said issue. 11. The insurer has also not pleaded and proved that the owner/insured has committed any willful default. 12. Viewed thus, this ground taken by the learned Senior Counsel for the appellant also fails. Accordingly, the appeal is dismissed and the impugned award is upheld. 13. Registry is directed to release the amount in favour of the claimants strictly, in terms of the conditions contained in the impugned award, through payee’s cheque account. 14. Send down the record, forthwith, after placing a copy of this judgment.