Shail Kumari Wd/O Bhuvneshwar … vs Dinesh Singh And Ors. on 17 August, 1994

Madhya Pradesh High Court
Shail Kumari Wd/O Bhuvneshwar … vs Dinesh Singh And Ors. on 17 August, 1994
Equivalent citations: 1995 (0) MPLJ 524
Author: P Chouhan
Bench: P Chouhan, D Jain

ORDER

P.N.S. Chouhan, J.

1. Thick No. M.H. G.6804 driven by respondent No. 1 Dinesh Singh who was the authorised driver of vehicle’s owner Shikhar Chand Jain, respondent No. 2, dashed against Bhuvneshwar Prasad on 22-10-1983 resulting in his death. On the date of the accident the said vehicle was insured with respondent No. 3. Appellants who arc legal heirs of deceased Bhuvneshwar Prasad presented a claim under Section 110A of Motor Vehicles Act for compensation of Rs. 3,41,000/-. IXth Additional Motor Accidents Claims Tribunal, Jabalpur, by award dated 17-7-1991, passed in M. V. Case No. 169/89 allowed the claim to the extent of Rs. 58,000/- and interest at the rate of 15% per annum. However, the Tribunal held that the insurance company was not liable for two reasons, namely, driving licence of respondent No. 1 was not produced and, therefore, it was inferred that he was driving the vehicle at the pertinent time without a valid licence which involved breach of the insurance agreement and that the insurance documents produced showed that the Insurance Company was the Oriental Fire and General Insurance Company whereas the person authorised by respondent No. 3 had signed the written statement filed by him on behalf of the “Oriental Insurance Co. Ltd.”. This appeal against the aforesaid award is restricted to the question of liability of respondent No. 2, Insurance Co.

2. The learned counsel appearing for the appellants argued that none of the respondents adduced any evidence. The Insurance Company was obliged to have proved by leading evidence that there was contravention of the agreement on account of the vehicle in question having been driven at the pertinent time by a person who was not having any driving licence. As no evidence was led by the Insurance Company there was no justification for the learned Tribunal to have concluded that there was any such breach of the agreement merely on the basis that the driving licence was not produced. Reliance was placed on Bishan Devi v. Sirbakh Singh, AIR 1979 SC 1862, wherein it has been held :

“Under Section 96(2)(b)(ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed. The evidence of AWs. 4 and 5 who have been examined clearly establishes that Anoop Singh was driving the vehicle. The two stray suggestions and the reply given by the two witnesses is not sufficient to establish that Anoop Singh was not licensed to drive a truck. It is the duty of the insurer to have substantiated his plea. We have no hesitation in rejecting the insurer’s plea as false especially as the owner who filed the written statement a month later did not support the former’s plea.”

The facts in the present case are similar. Apart from taking a plea in the written statement respondent No. 3 did nothing to substantiate that the driver at the pertinent time was not having a valid driving licence. As such merely on the basis of non-production of driving licence it could not have been inferred that respondent No. 1 was not in possession of a valid driving licence at the pertinent time.

3. The other reason given by the learned tribunal in this behalf is misconceived. The Insurance Company did not specifically deny that the vehicle in question was insured with it. It filed written arguments. There too it was not contended that the vehicle was not insured with it. The document of insurance was produced. The respondent No. 3 never challenged that it was not an agreement to which it was a party. In such circumstances merely because the written statement was filed by a person who claimed to be the representative of “Oriental Insurance Co. Ltd.” it was preposterous on part of the learned tribunal to have concluded that respondent No. 3 was not the insurer of the vehicle in question. There is no dispute that the said policy of insurance was valid on the date of the accident. It was also not disputed that the insurer’s liability was restricted to Rs. 50,000/-. We, therefore, accept the submission that respondent No. 3 Insurance Company was liable to the extent of Rs. 50,000/- and the learned tribunal illegally exonerated it from its liability.

4. In result the appeal is allowed. The award is modified thus : Respondent No. 3 the Insurance Company is also liable jointly and severally with respondents 1 and 2 for payment of the amount awarded by the tribunal together with interest but the company’s liability is restricted in terms of the agreement of insurance to Rs. 50,000/- only. In all other respects the award is upheld.

No order as to costs.

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