Dismissed

Icici Lombard General Ins.Co.Ltd v. Ved Prakash and Another

Chhattisgarh HC6 Jul 2012MAC/759/2008

Case brief

AI extract

What is this about?

In this motor accident claim appeal, the High Court dismissed the insurer's challenge to a tribunal award of Rs.37,745. The court held the insurance company failed to prove the owner lacked a valid licence, as they did not examine witnesses to validate document evidence submitted by the claimant.

What did the court decide?

Appeal against the tribunal award dismissed; order of the Tribunal affirmed; no order as to costs.

Icici Lombard General Ins.Co.Ltd Vs Ved Prakash and Another — Insurance | Chhattisgarh HC (2012)

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IN THE HIGH COURT OFCHHATTISGARH AT BILASPUR

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MISC. APPEAL FCI NO.^^f 72008

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MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988

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APPELLANT ICICI Lombard, General Insurance ZNSURER Company Limited, Registered office: ICICI Bank Towers, BandraKurla, Complex, Mumbai, 4000 51, .. o /..^ through its Manager (Legal), ICICI ^•6-<)i£u Lombard General Insurance .^':^^^ **-1:«"«tlA.^: Company Limited, Lal Ganga ^^f^ Shopping Mall, 3rd Floor, G.E. Road, Raipur (Chhattisgarh).

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VERSUS

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RESPONDENTS '^ 1. Ved Prakash, son of Shri Devpal DRIVERCUM ^ Sahu R/o Chandi, P.0. Sameradhi, ^ OWNER P.S. Suh^la, District Raipur (Chhattisgarh). CLAIMANT 2. Omprakash S/o Shri Rajesh Dandaykar, aged about 14 years , Minor represented through father Rajesh Dandaykar R/o Aamashivni, P.S. Dharsiwa, District Raipur

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(Chhattisgarh)

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HIGH CQURT OF CHHATT!SGARH AT BILASPUR

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M.A.(cl No. 759 of 2008

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Appellant

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ICICI Lombard General Insurance Company Limited

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Respondents Ved Prakash and another

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Present:

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Mr. Sourabh Sharma, counsel for the appellant.

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Mr, Rahul Mishra, counsel for respondent No.1.

OR D E R (Oral)

(6thJuly,2012)

G. Minhaiuddin. J

This appeal has been filed under Section 173 ofthe Motor Vehicles Act, 1988 (in short "the Act") by the appellant/insurance company against the award dated 2.5.2008 passed by the Additional Motor Accident Claims Tribunal (FTC), Raipur (in short "the Tribunal") in Claim Case No. 135/2007, whereby liability to pay compensation has been fastened upon the appellant/insurance company, jointly and severally, alongwith respondent No.l/owner.

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y:'-.

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Brief facts of the case, as per averments made in the claim petition, are that on 20.4.2007 at about 12.45 pm, respondent No.1 by driving Tractor bearing registration No. CG 04-DA-4716 and Trolley "the

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NO.CG-04-DA-6085 (hereinafter referred to as offending vehicle") in a rash and negligent manner dashed the motorcycle driven by one Yogdatt, on which respondent No.2 was sitting as a pillion rider, near Village-Khamaria, Distt. Raipur. As a resultofthe said accident, respondent No.2 sustained fracture on his left leg and became permanently disabled. At the relevant time, the offending vehicle was owned and driven by respondent No.1 and insured with the appellant/insurance company, - "

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At the time of accident, respondent No.2 was 14-years of age and by working in a hotel as waiter used to earn Rs.2000/- per month. Therefore, he filed a claim petition under Section 166 of the Act before the Tribunal for compensation to the tune of Rs.4,58,000/under various heads.

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However, learned Tribunal, after hearing counsel for the respective parties and considering the material available on record, by the impugned award granted a total compensation of Rs.37,745/- in favour of respondent No.2/claimaot, fastening the liability, jointly and severally, upon the appellant/insurance company alongwith respondent No.l/owner.

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Heard learned counsel for the parties, perused the LCR as also the impugned award.

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Learned counsel for the appellant/insurance company has contended that at the time of accident, the offending vehicle i.e. tractor trolley was being driven by respondent No.l/owner, who was not having a valid and effective driving licence and as such, there had been a clear breach of terms and conditions of the insurance policy and despite that, the claims Tribunal has wrongly fastened the liability upon the appellanVinsurance company. He has quoted, in para-8(G) of the Memo of Appeal, judgment of this Court rendered in the case of Kuleshwar Vs. Firant Sahu, AIR 2007 Chhattisgarh 72.

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On the other hand, learned counsel for respondent No.l/owner has supported the impugned judgment.

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So far as breach of terms and conditions of the insurance policy is concerned, it is not in dispute that at the time of accident, the offending vehicle was being driven by respondent No.l/owner. According to learned counsel for the appellant, respondent No.l/owner was having a licence to drive only motorcycle with gear and was not having a licence to drive LMV. It is a settled position that the burden to prove the fact that there had been a willful breach of terms and conditions of the insurance policy is on the insurance company.

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In addition to other documents, claimant/respondent No.2 herein has filed certified photocopy of the seizure memo (Ex.P/8), which was filed alongwith the charge sheet filed under Section 173(2) of Cr.P.C. against respondent No.l/owner for the offences under Section 279 and 337 of the IPC, in which (Ex.P/8) it has been mentioned that the driving licence of respondent No.l/owner was valid up tp 17.10.2023. As such, particulars of the licence were made kno^the appellant/insurance company and on the basis of these particulars, the insurance company had got the said driving licence verified through its investigator, who had submitted his report and the particulars of the driving licence (Ex.D/2 and D/3 respectively), but for proving the same, neither the investigator nor any official or clerk of the concerned RTO has been examined on behalf of the appellant/insurance company. The appellant/insurance company has solely relied upon the dpcument Ex.D/3, which according to the appellant/insurance company is the particulars of the driving licence of respondent No.l/owner, but the same has not been got proved as per the provisions of the Evidence Act. It is not in dispute that after the accident, the offending vehicle as well as the driving licence of respondent No.l/owner were seized by the police, but no offence under Section 3/181 ofthe Act was registered against respondent No.l/owner.

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10.1n the case of Kuleshwar Vs. Firant Sahu (supra), it has been held that it is not necessaryfor the insurance company to prove its plea by examining its witnesses and it can prove its contention even by the evidence brought before the Tribunal by the other parties also. However, in the instant case, the appellant/insurance company for proving the fact that respondent No-1/owner was not having a valid and effective driving licence at the time of accident, is solely relying upon the document Ex.D/3, which is said to be particulars of the driving licence of respondent No.l/owner, but the appellant despite opportunity has not proved it, either by examining its investigator or any official or clerk of the concerned RTO. As such, it cannot be said-that the appellant/insurance company has been successful in discharging its burden and proving that respondent No.1 was not possessing a valid and effective driving licence at the time of

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accident. In view of this, the finding recorded by the Tribunal in this regard cannot be termed as faulty and the same is hereby affirmed. The appellant/insurance company has not challenged the quantum of compensation, nor the claimant/respondent No.2 has filed any cross-objection or cross appeal for enhancement of compensation, therefore, the same needs no interference.

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11.In the result, the appeal fails and is, accordingly, dismissed. No order as to costs. | i Sd/G. Minhajuddin Judge

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Icici Lombard General Ins.Co.Ltd v. Ved Prakash and Another

Case brief

What is this about?

What did the court decide?

Icici Lombard General Ins.Co.Ltd v. Ved Prakash and Another

Case brief

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What did the court decide?

What the court decided

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