M/s. Iffco Tokio General Insurance Co. Ltd. vs Omprakash and Srinivas K.

B.S. Indrakala, J.—Though the matter is posted for admission, with the consent of the learned Counsel for both parties, the same is taken up for final disposal.

The above appeal is preferred against the judgment and award dated 17.6.2009 passed in MVC No. 398/2007 on the file of 14th Addl. Judge, Court of Small Causes, Member, MACT, Bangalore City (SCCH. 10).

It is the case of the appellant/claimant that on 17.12.2006 at about 6.30 p.m. on 7th Cross in front of Venkateshwara Dry Cleaners, HSR Layout, Bangalore, while he was riding motorbike bearing registration No. KA-17/J-7093, another motorbike bearing registration No. KA 51/J-7946 which was driven by its rider in a rash manner, came from the opposite direction and dashed against the motor cycle and caused the accident; in the said accident, the claimant sustained multiple injuries as detailed in the wound certificate and soon after the accident, he was shifted to a hospital, wherein he took treatment; he spent money for his treatment and prior to the accident, he was hale and healthy, working as a Partner of M/s. Jhawar Steel Corporation, Mothinagar, Bangalore, and earning Rs. 15,000/- per month; due to the injuries sustained, he is unable to do the work regularly and in the circumstances, he filed the claim petition seeking compensation from the respondents.

The 2nd respondent-Insurance Company while denying the allegations of the claimant on all material aspects, specifically pleaded that the liability of the insurance company, if any, is subject to terms and conditions of the policy.

To prove his case, claimant got himself examined as PW-1 and got marked the documents at Exs. P-1 to P-10. On behalf of the respondents, an official of insurer was examined as RW-1 and Exs. R-1 and R-2 are got marked.

On appreciation of the evidence placed on record, the Tribunal deemed it fit to allow the claim petition by awarding a sum of Rs. 46,613/- with interest at the rate of 8% p.a. from the date of petition till realization. It has further directed that respondent No. 2-Insurer to indemnify the owner of the vehicle.

Aggrieved by the said judgment and award, the appellant/insurer is in appeal inter alia contending amongst other grounds that the there is clear violation of conditions of policy by the insured and as such, the respondent-insurer is not liable to indemnify the owner of the vehicle. It is specifically contended that the rider of the motorbike which was insured with it, did not possess valid driving licence to ride the motorbike as per Ex. P-6 - the charge sheet, which discloses that the rider was charge sheeted for the offence u/s 3(1) of M.V. Act also.

The learned counsel appearing for the appellant submitted that though respondent-owner appeared through his advocate, he did not choose to adduce evidence nor did he deny the fact that the driver of the motorbike, to whom he had entrusted the vehicle, was not having valid driving licence. In the circumstances, it cannot be said that the insurance company has not discharged its burden by adducing evidence with regard to its plea of non-possession of valid driving licence by the rider of the motorbike. In the circumstances, he submitted that as there is clear violation of terms and conditions of the policy, fastening of the liability on the insurance company is not proper and hence seeks modification of the impugned judgment and award passed by the Tribunal.

Per contra, learned counsel appearing for the respondent-claimant submitted that mere production of charge sheet itself is not a conclusive proof to hold that the insurer discharged its burden of proving its plea that the driver did not possess the valid driving licence and as such, it has to be held that the insurance company has failed to prove that the rider of the vehicle did not possess the valid driving licence, in which event, the impugned judgment and award fastening the liability on the insurance company is just and proper and the same does not call for any interference.

Thus it is seen that the cause of accident as well as the claimant sustaining grievous injuries in the said accident are not in dispute The only question raised by the insurance company is with regard to violation of terms and conditions of the policy of the insurance company, inasmuch as, it is the specific case of the appellant-insurer that the rider of the vehicle which was involved in the accident and which was insured with the appellant-insurance company, did not possess the valid driving licence to ride the motorbike as on the date of the accident. Admittedly, on perusal of Ex. P-6, it is seen that the rider of the motorbike is charge sheeted for the offence u/s 3(1) of the M.V. Act also; in which event, prima facie it is established that the rider of the motorbike did not possess the driving licence.

The owner, as submitted by the learned counsel for the appellant, though entered appearance through his counsel, was not diligent either to contest the case of the appellant nor has he chosen to produce the driving licence of the rider of the vehicle. Further it is also seen that the insurance company has issued notice to the owner as per Ex. R-2, but, he has failed to comply the demands made therein. In the circumstances, it is seen that the insurance company has established that the rider of the motorbike did not possess valid driving licence to ride the motorbike as on the date of accident. It is also seen that there is clear violation of terms and conditions of the policy and as such the insurer is entitled to be exonerated from its liability to indemnify the owner of the vehicle.

Thus, the impugned judgment and award passed fastening the liability on the insurance company to indemnify the owner of the vehicle is not proper.

In this regard, it is also to be seen that even the principles laid down by the Apex Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, are of no avail to the claimant as the facts and circumstances of the said case are different from the facts and circumstances of the instant case. Hence, the following

ORDER

The above appeal is allowed by modifying the impugned judgment and award dated 17.6.2009 passed in MVC No. 398/2007 by the learned 14th Addl. Judge, Court of Small Causes, Member, MACT, Bangalore, by exonerating the liability of the insurance company to indemnify the owner of the vehicle which was involved in the accident. The 2nd respondent-owner shall satisfy the compensation amount payable to 1st respondent as awarded by the Tribunal.

Office to draw the award accordingly. The amount in deposit is ordered to be refunded to the appellant-Insurance company. No order as to costs.