New India Assurance Co. Ltd. vs Mumtaj and Others

Shiv K. Sharma, J.—The appellant insurance company seeks to challenge the award dated 9.12.1998 of the Motor Accidents Claims Tribunal, Dausa, whereby compensation in the sum of Rs. 3,03,000 was awarded to the claimants-respondents in Claim Petition No. 221 of 1996.

The claim petition was instituted by the husband and three minor children of deceased Kamrunisha who died on 17.4.96 in an accident while travelling in jeep No. RJC 602 from Ajmer to her village. The appellant insurance company in its written statement pleaded that it was the duty of the claimants to prove that the driver of the jeep at the time of accident was having valid driving licence. It was also averred that the owners of the jeep used it in violation of conditions of the insurance policy by allowing passengers to travel in it. The Tribunal framed issue No. 3 on the basis of objections raised by the appellant company.

Mr. Tripurari Sharma, learned counsel appearing for the appellant canvassed that owners of the jeep did not step in the witness-box to prove that the driver of the jeep was having valid driving licence and the jeep was used strictly in accordance with the insurance policy, therefore, adverse inference ought to have been drawn against them to the effect that driver was not having valid driving licence and jeep was used in violation of insurance policy. Reliance was placed on United India Insurance Co. Ltd. Vs. Gian Chand and others, Krishna Gupta v. Madan Lal Rashbihari Prasad and Others Vs. Parbati Kedia and Others, Chacko P.M. alias Thankachan Vs. Rosamma Antony and Others,

I have reflected over the submissions advanced before me and carefully weighed the material on record.

Admittedly, appellant insurance company did not adduce evidence in support of its contentions before the Tribunal. In United India Insurance Co. Ltd. Vs. Gian Chand and others, it was held by the Tribunal and the High Court that driver was not having any driving licence and it was not the case of the insured that he did not know that driver was not having a driving licence. Under these circumstances, it was indicated by the two-Judge Bench of the Hon''ble Supreme Court that adverse inference should be drawn against the insured who did not step in the witness-box. From the perusal of the facts of that case, it appears that insurance company adduced evidence in support of its contention. Thus ratio of Gian Chand''s case (supra) is not applicable in the facts and circumstances of the case on hand.

Bench of Hon''ble three Judges of the Supreme Court in Sohan Lal Passi Vs. P. Sesh Reddy and others, propounded thus (para 12):

The expression ''breach'' occurring in Section 96 (2) (b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the court that such violation or infringement on the part of the insured was wilful... Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of subsection (1) of Section 96.

As the appellant company did not choose to adduce evidence before the Tribunal, the issue No. 3 was rightly decided against it by the Tribunal. In view of ratio of Sohan Lal Passi Vs. P. Sesh Reddy and others, it is not necessary for me to discuss the other authorities cited by the learned counsel. I hold that the appellant company failed to establish that insured was guilty of violation of the policy.

The appeal of the appellant company is accordingly dismissed summarily.