The Branch Manager vs Sri O. Shashikumara and Sri T. Mahanthesh

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 20.1.2009 passed in MVC No. 975/2005 on the file of the II Addl. Civil Judge (Sr. Dvn.) and Addl. MACT, Chitradurga.

It is the case of the claimant that on 6.3.2005 at about 8.30 AM while he was going on his bicycle in front of Katalingeshwara High School on Challakere-Duggawara Road in Challakere, the motorcycle bearing Regn. No. KA. 16/K.7391 came from opposite direction in rash manner and dashed against the petitioner and his cycle causing the accident. Further, it is contended that in the said accident, the claimant sustained injuries; he was hospitalized; he spent money for treatment; he was unable to attend his classes and in the circumstances, he sought awarding of compensation.

In the statement of objections filed by the 2nd respondent denying the case of the claimant on all material aspects, it is specifically contended that the liability, if any, is subject to the terms and conditions of the policy.

The claimant to prove his case got himself examined as PW1 besides also examined a witness as PW2 and got marked documents Exs. P.1 to P.10. On behalf of the respondents, Exs. R.1 to 5 are got marked. On considering the said evidence so placed on record, the tribunal deemed it fit to award a sum of Rs. 12,000/- with interest at the rate of 6% p.a. from the date of petition till realisation against both the owner as well as the insurer of the vehicle.

Being aggrieved by the said judgment and award, the insurer/2nd respondent is in appeal inter-alia contending amongst other grounds that as on the date of the accident, the driver of the vehicle did not possess licence to ride the motorcycle; though the insurance company summoned the owner of the vehicle, he did not respond to the same and he also did not contest the case deliberately. It is also contended that the I.O. charge sheeted the rider of the motorbike u/s 3 of the Motor Vehicles Act, the tribunal failed to consider the said aspect. In such circumstances, it is contended by the appellant that as there is violation of the conditions of the policy, it is not liable to indemnify the owner of the vehicle.

The learned counsel appearing for the appellant submitted that the very fact that the charge sheet was filed against the rider of the vehicle invoking Section 3 of the Motor Vehicles Act that the rider of the vehicle did not possess any licence to ride the motorbike involved in the accident prima facie there is violation of the conditions of the policy. Further, he submitted that when once the charge sheet is got marked as Ex. P.5 by the claimant himself disclosing the said aspect of accusing the rider of the vehicle u/s 3 of the M.V. Act, the burden of the insurer to establish that the driver did not possess the driving licence is duly discharged and it is for the person who seeks the benefit of the insurance policy to establish that the driver did possess the licence as the burden shifts upon him. In the circumstances, it is further submitted by the counsel for the appellant/insurer that the insurance company is not liable to indemnify the owner of the vehicle.

Per contra, learned counsel appearing for the respondent/claimant submitted that mere filing of charge sheet by itself is not conclusive to hold that the burden of the insurance company in establishing that the driver did not possess the driving licence is discharged and further, she submitted as the insurance company has not discharged its burden of proving its case that the driver did not possess the driving licence, it cannot be said that insurance company is not liable to indemnify the owner of the vehicle. Further, she submitted that even otherwise, in view of the decision rendered in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, , the respondent/insurer may be directed to pay the amount awarded and then proceed against the owner for recovery of the same.

In view of the said submissions, the points that arise for consideration are:

(1) Whether the impugned judgment and award is liable to be modified?

(2) What order?

The cause of accident, the claimant sustaining injuries in the accident, the quantum of compensation awarded are not in dispute. The insurance company has only questioned the findings given with regard to its liability to indemnify the owner of the vehicle when there is clear breach of condition of the policy. In that regard RW1-the official of the insurance company has deposed that rider of the vehicle was charge sheeted for the offence u/s 3 of the M.V. Act; the owner of the vehicle viz., Respondent-1 knowingly that the rider was not having a driving licence permitted him to ride the vehicle in the circumstance, the insurance company is not liable to indemnify the owner for violation of the terms and conditions of the policy. Further, he has stated that the owner of the vehicle has not intimated the company with regard to the alleged accident nor produced any document in that regard inspite of issue of notice to him calling upon him to produce the said documents and the said notice was refused to be received by the owner.

On perusal of the copy of the charge sheet marked as Ex. P.5. it is seen that the rider of the motorbike is prosecuted for the offence under Sections 279, 337 IPC read with Section 3 and 18 of M.V. Act. Thus, it is seen that prima facie the insurer has discharged the burden of establishing that the rider of the vehicle was not possessing any driving licence to ride the vehicle. To rebut the same, he the owner ought to have produced the documents either before the I.O., insurer or before the tribunal which he has failed to do so. In the circumstances, adverse inference will have to be drawn against the owner of the vehicle that the rider of the vehicle did not possess a valid driving licence to ride the said two wheeler as on the date of the accident and if that be so, as per the terms and conditions of the policy, the insurer is not liable to indemnify the owner of the vehicle. With regard to the decision relied upon by the learned counsel for the appellant the facts and circumstances of the said case are different from the facts and circumstances of the case on hand and as such, the same is not squarely applicable. The tribunal inspite of production of the copy of the charge sheet, by overlooking the said document so filed, merely relying on the policy produced by the respondent/insurance company has fastened the liability without assigning any reasons, which is not proper. In the circumstances, the impugned judgment and award is liable to be modified. Hence, the following:

ORDER

The above appeal is allowed setting-aside the impugned judgment and award so far as it relates to the liability fastened on the insurance company to pay the compensation awarded and the insurer of the vehicle viz., 2nd respondent therein/appellant herein is hereby exonerated of its liability to indemnify the 1st respondent owner of the vehicle. However, the award as against 1st respondent remains unaltered.

Office to draw the award accordingly.

Amount in deposit is ordered to be refunded to the appellant.