Govindappa vs Alijin and another

Ram Mohan Reddy, J. - Accepting the cause shown in the affidavit accompanying the application in I.A. 1/11, delay of 151 days in filing the appeal is condoned and I.A. 1/11 is allowed.

Claimant in MVC No. 35/2010 on the file of the Senior Civil Judge and MACT, Malavalli, for short ''MACT,'' aggrieved by the finding absolving the insurer of the motor vehicle from paying compensation, by the judgment and award dated 2-2-2011, has presented this appeal.

Before the MACT, the respondent-in-surer of the offending motor vehicle examined its officer as RW-1 and marked the policy of insurance as Ex. R1 and an extract of the licence to drive LMV, as Ex. R2. The MACT accepted as credible evidence, both oral and documentary, and declined to fasten the liability to pay the compensation, on the insurance company.

In Rukmani and others v. New India Assurance Co. and others (1998) 9 SCC 160 : (1999 AIR SCW 4712), the Apex Court though noticed that the Insurance Company had in support of its plea that the driver of the vehicle did not hold a valid driving licence, examined Inspector of Police who investigated the accident, nevertheless, observed that in the enquiry of the said Inspector, the driver of the vehicle did not produce the licence and even after demand, did not submit the licence since he did not have any, while, in cross-examination, admitted to the effect that he was required to check whether licence is issued and that he had not informed the Inspector of the motor vehicles that driver did not hold a valid licence since it was not necessary, the Apex Court held that failure to summon the driver of the vehicle and there being no record from Regional Transport Authority placed before Tribunal, the Insurance Company has not discharged its burden cast upon it under Section 96(2)(b)(ii) of the M.V. Act, 1989, which is pari materia with Section 149 of the ''Act''.

In National Insurance Co. Ltd. v. Swaran Singh and others, AIR 2004 SC 1531, the Apex Court observed thus :

"63. In Rukmani and others v. New India Assurance Co. Ltd. and others, (1999 ACJ 171) : (1999 AIR SCW 4712), this Court while upholding the defences available to the insurer to the effect that vehicle in question was not being driven by a person holding a licence, held that the burden of the insurer would not be discharged when the evidence which was brought on record was that the Inspector of Police in his examination-in-chief merely stated, "My enquiry revealed that the respondent No. 1 did not produce the licence to drive the above said scooter. The respondent No. 1 even after my demand did not submit the licence since he was not having it."

The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi (supra)).

Apart from the above, we do not intend to lay down anything further i.e. degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard and fast rule can therefore be laid down. If in a given case there exists sufficient material to draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of contract of insurance on the part of the insurer by discharging its burden of proof.

The Tribunal, there cannot be any doubt, must arrive at a finding on the basis of the materials available on records."

If regard is had to the observations of the Apex Court supra, it is needless to state that the testimony of RW-1 was not clinching evidence to support the defense available under Section 149(2) for the insurer. The Regional Transport Authority or other officer of the RTA is not examined in support of Ex. R2, the driving licence. In short, there is no satisfactory material on record to establish the plea of breach of terms and conditions of the policy of insurance so as to exonerate the insurance company from paying the compensation.

In the result, this appeal is allowed-in-part. The judgment and award impugned insofar as it relates to exonerating the insurer from making payment of compensation, is set aside and the insurance company is made liable to pay the compensation and in all other respects, remains unaltered.