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2015 DIGILAW 329 (HP)

New India Assurance Company Ltd. v. Janak Rani

2015-04-10

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, Chief Justice (Oral): By the medium of FAO Nos.62, 63 and 66 of 2008, the insurer-appellant has questioned the common award, dated 29th October, 2007, passed by Motor Accident Claims Tribunal(II), Una, H.P., (for short, the Tribunal), in Claim Petition No.43 of 2004, titled Meera Rani vs. Rakesh Kumar and another, Claim Petition No.44 of 2004, titled Suraksha Devi vs. Rakesh Kumar and another, and Claim Petition No.45 of 2004, titled Janak Rani and another vs. Rakesh Kumar and another, while in FAO No.64 of 2008, challenge is to the award, dated 29th October, 2004, in Claim Petition No.42 of 2004, titled Hans Raj and others vs. Rakesh Kumar and another, and in FAO No.65 of 2008, the award, dated 29th October, 2007, passed in Claim Petition No.41 of 2004, titled Ranjit Singh and others vs. Rakesh Kumar and another, is under challenge, (for short, the impugned awards). 2. Vide the impugned awards, the Claim Petitions, filed by the claimants, came to be determined and compensation was granted in their favour, by saddling the insurer with the liability. 3. The owner/insured and the claimants have not questioned the impugned awards on any count, thus, the same have attained finality in so far as the impugned awards relate to them. 4. The insurer, feeling aggrieved, has questioned the impugned awards on the ground that the Tribunal has fallen in error in saddling the insurer with the liability, inasmuch as the driver of the offending vehicle was not having a valid and effective driving licence and the owner has committed willful breach of the terms and conditions of the insurance policy. 5. The Tribunal, after going through the entire evidence, has recorded categorical findings on issues No.3 and 4 that the driver of the offending vehicle was having a valid and effective driving licence and that the vehicle was not being plied in contravention to the insurance policy. 6. Onus to prove issues No.3 and 4 was on the insurer. It is apt to place on record that the insurer has not led any evidence to prove these issues, thus has failed to discharge the onus. 7. 6. Onus to prove issues No.3 and 4 was on the insurer. It is apt to place on record that the insurer has not led any evidence to prove these issues, thus has failed to discharge the onus. 7. During the course of hearing, the learned counsel for the appellant/insurer was asked whether there is any proof on the file in terms of Section 149 of the Motor Vehicles Act, 1988, read with the judgment of the Apex Court in National Insurance Co. Ltd. versus Swaran Singh & others, AIR 2004 Supreme Court 1531, to the effect that the insured/owner has committed willful breach. He frankly conceded that the insurer has not led any evidence. Thus, the insurer has failed to prove that the driver of the offending vehicle was not having a valid and effective driving licence or that the vehicle was being plied in violation of the terms and conditions of the insurance policy. 8. Having said so, all the appeals are mis-conceived and the same are dismissed accordingly. Consequently, the impugned awards are upheld. 9. The Registry is directed to place a copy of this judgment on the record of each file and to release the compensation amount in favour of the claimants, strictly in terms of the conditions contained in the impugned awards, if not already released.