Dismissed

United India Insurance Company v. Smt. Deobai and Ors.

Rajasthan HC12 Feb 2013CMA/245/1998

Case brief

AI extract

What is this about?

The High Court dismissed the appeal preferred by the insurance company against the Madhya Pradesh Motor Accident Claims Tribunal award. The Court held that the insurance company failed to lead evidence proving the driver lacked a valid license despite possessing contrary documents, and thus the Tribunal's award stands.

What did the court decide?

The appeal was dismissed; the Tribunal award of Rs.1,50,000/- was upheld.

United India Insurance Company Vs Smt. Deobai and Ors. — Insurance | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL MISC. APPEAL NO.245/1998

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United India Insrance Company Ltd. Vs. Smt. Deobai & Ors.

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Date of Judgment :: 12.02.2013

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PRESENT

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. Manoj Bhandari ) for the appellant. Mr. Sushil Bishnoi )

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Mr. BM Bhojak ) for the respondents. Mr. Ramesh Panwar)

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BY THE COURT:

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This appeal has been preferred by the insurance company aggrieved by the award dated 17.10.1997 passed by the learned Motor Accident Claims Tribunal, Pratapgarh ('the MACT'), whereby an award of Rs.1,50,000/- has been passed in favour of the claimants on account of death of one Devi Lal.

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Brief facts of the case are that deceased Devi Lal was travelling in a Tractor No.RJH-6513, which was attached to a Trolly No. RJH-6514 as part of a marriage party. When the said vehicle reached village Gandher, another tractor being Tractor No.RJH-7287 attached with a Trolly No.RJH-7290 struck the trolly in which, deceased Devi Lal was travelling and the trolly turned turtle, whereby the said Devi Lal received grievous injuries and died.

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The claim petition was filed by the legal representatives of deceased Devi Lal claiming a sum of Rs.3,16,000/- for untimely death of deceased Devi Lal. The claim was resisted by the owners of both the vehicles as well as the insurance company, which happens to be the same, for both the vehicles.

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It was submitted by the insurance company that from the tractor and trolly No.RJH-6513 and RJH-6514 no premium was charged for carrying passengers and, therefore, the insurance company was not liable. It was also stated that both the drivers were not having valid driving licence and, therefore, also the insurance company was not liable.

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The Tribunal after evidence was led by the claimants and the owners of the tractors came to the conclusion that the accident occurred on account of rash and negligent driving of Jeevan Lal, who was driving the Tractor No.RJH-7287 rashly and negligently and, therefore, the owners of the tractors namely Bheru Lal and Girdhari Lal and so also the insurance company were liable for payment of compensation. While dealing with the issue relating to the liability of the insurance company based on the plea raised by the insurance company, the Tribunal came to the conclusion that no evidence was produced by the insurance company and it was incumbent on the insurance company to prove on record that the driver was driving the vehicle by violating the policy conditions and in absence thereof the issue related to violation of policy conditions was also decided against the insurance company.

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Alongwith the appeal, an application under Order XLI, Rule

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27 CPC has been filed by the appellant-insurance company. In

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the said application it has been contended that the insurance company had undertaken the enquiry with regard to the licence said to be possessed by the driver Jeevan Lal of the offending vehicle RJH-7287 and it was found that the said licence was a fake document. In this regard the insurance company has filed a certified copy of the application filed before the learned Tribunal when the matter was being considered by 'Lok Adalat' and has also produced a letter dated 6.6.1994 written by a claim investigator, on which there is an endorsement by the Transport Officer. It is further contended in the said application that the said document could not be produced before the tribunal despite due diligence and they were important for just decision of the case.

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It appears that the said application was not pressed at any stage by the appellant – insurance company, inasmuch as, the appeal is pending since 1998 and no notice of the said application was ever issued to the respondents. Even a copy of the said application has not been supplied to the learned counsel for the respondent. Even otherwise the fact that the insurance company was admittedly in know of the fact that the licence said to be in possession of the driver Jeevan Lal was allegedly a fake document way-back in the year 1994, they just did not lead evidence in this regard before the tribunal and thereafter now to press the said application alongwith a letter which pertains to the year 1994 before this Court, clearly shows that apparently the insurance company had abandoned the plea relating to the alleged fake licence. Further, no reason has been indicated in the application also as to what lead the insurance company to not

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press the said plea before the learned tribunal and what was the trigger which lead it to file the said application in the year 1998 before this Court. It would be interesting to note that in the letter dated 6.6.1994, there is an endorsement of receipt by the insurance company on 17.2.1998 which apparently shows the slackness on the part of the insurance company in dealing with the said issue.

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In that view of the matter, the application under Order XLI, Rule 27 CPC is without any substance and the same is, therefore, dismissed.

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It was contended by the learned counsel for the appellant that from the record and the cross-examination of the driver Jeevan Lal, it was apparent that he was not in possession of a valid driving licence and, therefore, it was incumbent on the Tribunal to hold the said issue in favour of the insurance company.

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It was also contended that the vehicle was being put to a use for which it was not insured inasmuch as the passengers were carried in the said vehicle and on that count also, the insurance company is not liable for making payment of the amount of compensation. Learned counsel for the appellant has relied on the judgment of Hon'ble Punjab and Haryana High Court in the case of National Insurance Company Limited Vs. Bala Devi & Ors., reported at 1997 ACJ 1297 and another judgment of Hon'ble Supreme Court in the case of Oriental Insurance Company Limited Vs. Prithvi Raj, reported at 2008 ACJ 733.

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On the other hand, the learned counsel for the respondent

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supported the award passed by the Tribunal. It was submitted that it was incumbent on the insurance company to prove by cogent evidence that the insured had violated the policy condition. However, it failed to lead any evidence and, therefore, it is now not open for them to raise the issue all over again.

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I have considered the rival submissions and perused the material available on record.

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The appellant had taken a omnibus plea in their reply that both the drivers of the tractors were not having valid driving licence and, therefore, the insurance company was not liable. After taking the said plea in the written statement, the appellant – insurance company had not taken any care whatsoever to thereafter lead evidence in support of their plea. It is well settled that the burden to prove violation of policy condition lies on the insurance company and it is not for the owner and/or the claimants to show that the conditions of the policy have been fulfilled by them. The driver Jeevan Lal appeared as a witness being NAW-4 and specifically stated that he was in possession of licence. The fact that he further went out to say that he has not produced certified copy from the criminal case of his driving licence does not advance the case of the appellant-insurance company. Further as noticed above, the insurance company was allegedly in possession of document showing the licence to be fake still they choose not to press the said plea and in fact, no question even was put to said Jeevan Lal regarding the fact i.e. the licence was fake.

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In that view of the matter, the insurance company has utterly failed to discharge his burden to show that the driver was

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not in possession of valid driving licence and/or the conditions of policy were violated and, therefore, the finding of the tribunal on this count does not call for any interference.

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So far as use of tractor trolly for carrying passenger is concerned, the learned counsel for the respondent is correct in his submission that the tractor which has been held to be liable for rash and negligent driving, was not the tractor carrying the passenger and, therefore, even if the trolly was not meant for carrying the passenger, the same does not lead to any violation of policy conditions as far as the offending tractor No.RJH-7287 is concerned.

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In that view of the matter even the second ground raised by the insurance company is not sustainable.

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So far as judgments cited by the learned counsel for the appellant is concerned, both the judgments deal with the cases of fake driving licence and in both the cases the insurance company had led evidence in that regard. The present is a case of no evidence whatsoever by the insurance company and, therefore, the judgments have no application.

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In that view of the matter, the appeal has no substance and the same is, therefore, dismissed. While admitting this appeal vide interim order dated 22.4.1998, the operation of the award was stayed to the extent of 50% it would be required of the appellant to pay the balance amount within a period of three months, if not already paid.

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No costs.

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(ARUN BHANSALI), J.

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rm/-

United India Insurance Company v. Smt. Deobai and Ors.

Case brief

What is this about?

What did the court decide?

United India Insurance Company v. Smt. Deobai and Ors.

Case brief

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