IFFCO Tokiyo General Insurance Company Limited vs Navin Upadhyay

Heard on I.A.No.01/2020, an application for condonation of delay in filing the appeal.

On due consideration and for the reasons mentioned in the application, it is allowed and the delay 12 days in filing the appeal is condoned.

Heard on admission.

This appeal has been filed by the appellant/insurer being aggrieved by the impugned award dated 11.11.2019 passed by the Motor Accident Claims Tribunal, Balrampur, place at Ramanujganj (C.G.) (for short, 'the Tribunal) in M.A.C.C. No.68/2017, whereby the Tribunal has allowed the claim petition preferred by the claimants, while fixing the liability primarily on the insurance company/Iffco Tokiyo General Insurance Company Limited. Parties to this appeal shall be herein after referred as per their description before the Claims Tribunal.

Briefly stated the facts of the case are that on 16.01.2017, deceased Anuj Panika was travelling in a Maruti Alto Car bearing registration No.C.G.12-ZD-4233, owned by Non-applicant No.2, to his village Beto. The said vehicle was being driven by Non-applicant No.1 – Navin Upadhyay in a rash and negligent manner, resulting into the accident and on account of accident, deceased Anuj Panika died. It is not in dispute that the said offending vehicle was insured with Non-applicant No.3, i.e., appellant herein. Owing to sudden demise of the deceased, a claim petition was filed by the parents of the deceased seeking total compensation of Rs.16,80,000/-.

Non-applicants No.1 & 2 have contested the claim petition denying the allegations made in the claim petition. It was specifically pleaded by them that the offending vehicle was insured with Non-applicant No.3/insurer and since the vehicle in question was insured with the insurance company, therefore, in case of any liability being fastened, the same could be indemnified by the said insurance company and that Non-applicant No.1 was possessing valid and effective driving licence on the date of accident, while Non-applicant No.3/insurer has not filed any written statement despite number of opportunities being provided.

The Tribunal, vide impugned award dated 11.11.2019, after considering the evidence led by the parties, has held that the alleged accident took place on 16.01.2017 due to rash and negligent driving of driver/Non-applicant No.1 of the offending vehicle, awarded a total compensation of Rs.10,43,600/- while saddled with the liability to pay compensation primarily upon the appellant/insurance company.

Learned counsel for the appellant submits that the Tribunal has fallen in error in fastening the liability upon the appellant/insurance company. It is submitted further by him that the deceased was an occupant of the vehicle and occupant of the vehicle was not covered under the policy nor was covered risk of other passengers. On these premises, learned counsel for the appellant/insurance company urged that the insurance company may kindly be exonerated from its liability to pay compensation.

On the other hand, learned counsel appearing for respondents 3 & 4/claimants, while opposing the submissions made by the appellant/insurance company, submits that the Tribunal, upon due and proper appreciation of the evidence available on record, has rightly saddled with the liability upon the appellant/insurance company, which does not call for any interference.

I have heard learned counsel for the parties and perused the record of the Tribunal including the evidence adduced on record minutely.

Perusal of the impugned award would show that the appellant/insurance company did not choose to contest the claim petition and remained completely slumber. It appears that the insurance company was given number of opportunities to file its written statement. Ultimately, by order dated 28.09.2018, time to file its written statement was closed. It also appears that Non-applicants No. 1 & 2 had contested the case by filing their written statement jointly and led evidence and filed insurance policy and registration certificate in relation to offending vehicle. As per registration certificate, Non-applicant No.2 Jagnnath Kushwaha is the owner of the offending vehicle and the validity of the insurance policy was from 22.11.2016 till 21.11.2017 whereas the accident had happened on 16.01.2017, which shows that on the date of accident, the offending vehicle was insured.

Moreover, it appears that the Non-applicant No.1 – Navin Upadhyay himself has produced driving licence, according to which, the Non-applicant No.1 got permission to drive L.M.V. and the period of driving licence was from 26.02.2013 till 26.02.2019.

A bare perusal of the impugned award would reveal that the insurance company has neither filed its written statement nor has led any evidence, oral or documentary, to rebut the evidence adduced by the claimants and Non-applicants No.1 & 2. The learned Tribunal, it appears, has provided number of opportunities to put its case properly, but the appellant/insurance company has never availed any opportunity. The law is well settled. The burden to prove violation of policy conditions is upon the insurance company. However, the insurance company has failed to discharge its burden despite there being number of opportunities provided to it.

Considering the evidence and material available on record, the learned Tribunal proceeded, resulting into, impugned award was passed fastening the liability to pay compensation upon the appellant/insurance company. In the considered opinion of this Court, the learned Tribunal, upon proper appreciation of the evidence and material available on record, has rightly passed the impugned award and I do not find any infirmity in the award impugned.

In the result, the appeal filed by the insurance company is liable to be and is hereby dismissed being devoid of merit. No order as to costs.