National Insurance Company Ltd. vs Hanif Sai and Others

Gurusharan Sharma, J.—Heard the parties and with their consent this appeal is disposed of under Order 41, Rule 11 of the Code of Civil Procedure. Chhote Babu, a three year''s old child lost his life on 3.1.1995. He was dashed by a tractor, bearing registration No. BR-04-7259. In Claim Case No. 33 of 1995, filed under the provisions of Motor Vehicles Act, 1988, his parents were granted compensation to the tune of Rs. 55000/-. Claimants were able to prove that accident took place on account of rash and negligent drive. At the relevant time tractor was insured with National Insurance Company Limited.

Mr. Harendra Kumar Singh, counsel for the Appellant-Insurance Company submitted that for violation of terms of Insurance Policy, the insurer was not to indemnify the owner''s liability.

On the other hand, Mr. Sunil Kumar Singh, counsel for the owner of tractor, Respondent No. 4 submitted that Appellant failed to prove that tractor was being used for commercial purpose and that the owner willfully violated any term of the Insurance policy. So, the tribunal rightly asked the Insurer to indemnify owner''s liability to pay compensation.

Tribunal found that, at the time of accident tractor was carrying a tailor loaded with sand for brick-kiln of one Jai Singh. It was therefore being used for commercial and not agricultural purpose. Carbon Copy of Insurance policy was produced before the Tribunal, which shows that tractor was to be used only for agricultural purpose.

It is not in dispute that claimants pleaded and adduced evidence to the effect that tractor in question, at the time of accident was carrying a tailor loaded with sand for a brick-kiln run by one Jai Singh. The Insurer on that basis had also pleaded that tractor was being used for commercial purpose, in violation of terms of Insurance policy, whereby it was to be used only for agricultural purposes. Owner of the tractor appeared in the Claim Case and filed written statement, but it was not denied that tractor was being used for commercial purpose. Owner thereafter neither cross-examined the claimants'' witnesses on this point nor adduced any evidence on his behalf rather left contesting claim case.

It is well settled that facts admitted need not be proved. Moreover, I find that on the basis of evidence of P.Ws. 2 and 3 it was proved that tractor was being used for commercial purpose. The owner, therefore, willfully violated the aforesaid term of Insurance policy, which was brought on record by the Insurance Company. I, therefore, hold that Insurer was not liable to indemnify owner''s liability to pay compensation. The impugned judgment and award is accordingly modified to the extent that instead of insurer, owner of the tractor shall be liable to pay the compensation amount granted by the tribunal to the claimants.

This appeal is disposed of with above modification in the impugned judgment and award.