National Insurance Company Ltd., Branch Officer vs Sowmya and Others

C.Y. Somayajulu, J.—Respondents 1 to 3 filed a claim petition under the Motor Vehicles Act, 1988 seeking compensation of Rs. 3,90,000/- for the death of Lingayathi B. Devaraju (the deceased) i.e., husband of 1st Respondent and son of Respondent Nos. 2 and 3, due to an accident that occurred on 7-7-1994 due to the rash and negligent driving of the lorry bearing No. A.P. 21-T-0286 on the ground that the deceased aged about 24 years, was earning Rs. 5,000/- per month from agriculture and business. Respondent Nos. 4 and 5 who are the driver and owner of the lorry involved in the accident chose to remain ex parte both in the Tribunal and in this Court. Appellant who is the insurer of the lorry involved in the accident filed a counter contesting the petition. In support of their case, Respondents 1 to 3 examined two witnesses as P.Ws.1 and 2 and marked Exs.A-1 to A-6. No evidence either oral or documentary adduced by the appellant.

On the basis of the evidence on record, the Tribunal held that the accident took place due to the rash and negligent driving of the 4th Respondent, and that Respondent Nos. 1 to 3 are entitled Rs. 1,91,040/- from Respondents 4 and 5 and appellant jointly and severally. Questioning the award of compensation against it, the insurer of the lorry involved in the accident preferred this appeal.

The point for consideration is whether the appellant is liable to pay the compensation to Respondent Nos. 1 to 3?

The contention of the learned Counsel for the appellant is that since the deceased was travelling in the lorry, which is a goods vehicle, it is not liable to pay the compensation, in view of the ratio in New India Assurance Co. Ltd. Vs. Asha Rani and Others, . The contention of the learned Counsel for Respondents No. 1 to 3 is that since the appellant did not adduce any evidence and did not produce the insurance policy, award passed by the Tribunal against the appellant cannot be said to be erroneous, and in any event in view of the ratio in National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , the remedy of the appellant is only to recover the amount from the owner of the vehicle after satisfying the claim of Respondents No. 1 to 3.

It is well known that when insurance of a vehicle involved in a accident is admitted, burden to establish that it is not liable to pay the compensation for breach of violation of the terms and condition of the policy, is on the insurer. It is not doubt true that the documentary evidence on record in the shape of Ex.A-1 (FIR) an Ex.A6 (Inquest Panchanama) show that the deceased was travelling as a passenger in the lorry, but inasmuch as appellant did not produce the insurance policy, I do not wish to interfere with the finding of the Tribunal that appellant also is liable to pay the compensation payable to the Respondents No. 1 to 3. However, the appellant, after establishing that there is a violation of the terms of the policy is at liberty to recover the amount paid by it to Respondent Nos. 1 to 3 from the owner of the vehicle, as held in Baljitkaur case (supra). The point is answered accordingly.

With the above observation, the appeal is dismissed. No costs.