National Insurance Co. Ltd. through Divisional Manager Vs Rajani Devi and Ors.

The Insurance Company is in appeal against the judgment and award of compensation in Title (Motor Vehicle) Suit No. 32 of 2013 under Section 166 of the Motor Vehicle Act by which the liability has been fixed on the owner of the vehicle to pay the compensation amount.

¶19

The facts are not in dispute that the deceased Anil Rabidas died in an accident involving the offending vehicle. At the time of the death, the deceased was a B.C.C.L. employee and was getting salary of Rs. 37,132/- per month. It is also not in dispute that Tipper bearing Registration no. WB-37-9420, at the time of accident was under the insurance cover of the appellant-Company. Accordingly, the compensation was assessed and the liability was fixed on the Insurance Company.

¶20

It is argued by learned counsel for the appellant that the owner had appeared before the learned Tribunal and had also filed the written statement, however, the driving license and permit were not produced. Primary responsibility for producing the permit and driving license is on the owner of the vehicle and having failed to do so, an adverse inference was liable to be drawn that there was a fundamental breach of the policy of insurance under Section 149 of the Motor Vehicle Act, in view the ratio laid down by the Hon’ble Apex Court in (2018) 7 SCC 558 (Amrit Paul Singh Vs. Tata Aig General Insurance Co. Ltd.) and

¶21

2025:JHHC:26944

¶22

(2018) 3 SCC 208 (Pappu Vs. Vinod Kumar Lamba) . It is also argued that from the postmortem examination report (Ext.7), it will be evident that at the time of accident the deceased was under the influence of liquor, as smell of alcohol was found from the Viscera.

¶23

The original owner of the vehicle namely, Babu Ram Jindal, died during pendency of the appeal and was substituted by his son vide order dated 01.08.2025. Thereafter, notices were issued, but he did not appear. Consequently, the appeal is being heard ex-parte against him.

¶24

On perusal of the impugned order, it is evident that neither the driving license, nor the permit was produced. The onus to lead evidence in this regard was on the owner of the vehicle, and in absence of it, a presumption of fact can be drawn under Section 106 of the Evidence Act that these facts which were within the knowledge of the owner. Having failed to produce these documents, an adverse inference can be drawn in terms of Section 106 read with Section 114-(g) of the Evidence Act.

¶25

In this view of matter, the plea of breach of insurance policy has been validly raised, but the learned Tribunal appears to have decided Issue No. 2 by holding that since the Insurance Company failed to produce these documents, therefore, the condition for breach of policy was not satisfied. This Court is of the view that learned Tribunal erred in deciding Issue No.2 and the findings are, accordingly, set aside.

¶26

The Insurance Company succeeds in appeal and will have a right to recovery against the owner of the vehicle after paying the sum to the claimants.

¶27

It is contended that the entire compensation amount with interest has been deposited before the Tribunal and 50% of the said amount has already been disbursed. Learned Tribunal to verify and ensure the disbursement of the said amount on proper identification of the claimants within a month of this order. The statutory amount earlier deposited be refunded to the Insurance Company.

¶28

This miscellaneous appeal is accordingly, allowed.

¶29

Pending I.A., if any, stands disposed of.

¶30

(Gautam Kumar Choudhary, J.)

¶31

AKT/Satendra

¶32

2

National Insurance Co. Ltd. through Divisional Manager v. Rajani Devi and Ors.

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National Insurance Co. Ltd. through Divisional Manager v. Rajani Devi and Ors.

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