Oriental Insurance Co. Ltd. vs Sunil Sharma and Others

G.P. Mittal, J.—The Appellant Oriental Insurance Co. Ltd. impugns the award dated 18.09.2006 whereby a claim petition u/s 166 of the

Motor Vehicles Act, 1988 filed by the Respondent No.1 was allowed and he was granted compensation totaling ` 1,45,708/- in respect of the

injuries including permanent disability to the extent of 20% in respect of the left leg.

The Appellant''s grievance is that although it led evidence to show that the driver did not possess any valid and effective driving licence to drive

the HMV, the impugned award is completely silent about the Appellant''s plea.

The learned counsel for the Appellant took me through the cross-examination of R2W1 Chaman Lal owner of Truck No.DL-1HG-1850, who

admitted that he was not in possession of the licence of the driver on 09.12.2005. The learned counsel for the Appellant also referred to the order

dated 19.07.2011 passed by this Court whereby Respondent No.3 was directed to file an affidavit enclosing photocopy of the driving licence held

by Respondent No.2 the driver at the relevant time.

On the other hand it is urged by learned counsel for Respondent No.3 that this accident took place on 28.06.1997 and the claim petition was

filed on 02.01.2003 i.e. more than 51/2 years after the accident. The driver had a valid driving licence on 28.06.1997 i.e. at the time of accident,

which was duly verified by him (the owner).

Though, the Appellant Insurance Co. sought to prove a notice under Order 12 Rule 8 CPC purported to have been served upon Respondent

No.3. The same was, however, not proved as the envelope Ex. R2W1/R3, though admitted by R2W1 the owner as having his correct address, it

was not proved that he was ever put to notice to produce the driving licence of the driver. No evidence of tendering this notice was produced by

the Appellant. The claim petition was been filed after 51/2 years of the accident, it could not be expected of Respondent No.3 to have retained the

driving licence of the driver (Respondent No.2). Respondent No.3 cannot be said to be guilty of the breach of the terms of the policy so as to give

a defence to the Appellant u/s 149(ii)(b) of the Motor Vehicles Act to avoid the liability. Although, the Tribunal did not deal with this issue

specifically yet the Tribunal''s finding making the Appellant liable to pay the compensation cannot be faulted.

The appeal is devoid of any merit. The same is accordingly dismissed.