Oriental Insurance Company Limited vs Sushil Tiwari

Rakesh Mohan Pandey, J

The insurance company/appellant has assailed the award passed by the learned Ist Additional Motor Accident Claims Tribunal, Raipur in Claim Case No. 820/2015 dated 16.04.2019, whereby the claim case filed by the claimant was partly allowed and award to the tune of Rs. 6,62,000/-with interest @9 % per annum was passed in favour of the claimant on account of injury sustained by him.

Mr. Raj Awasthi, learned counsel for the appellant would submit that the claimant was dashed by the offending vehicle bearing registration No.CG-08U-0626, on 07.06.2015 at about 7 pm near Water Park, Ticket counter, Indraprasth Raipur. He would further submit that according to Ex.P/88, the extent of permanent disability assessed by medical board was 50 %. He would contend that the learned tribunal after appreciation of the evidence passed the award in favour of the claimant. He would also contend that the driver of the offending vehicle was not having valid driving licence and this issue has been decided against Insurance Company by the learned tribunal, while deciding the issue No.4.

He would contend that the witness namely Ritesh Kumar Rahangdale (NAW/2) was examined to prove this fact. He would further contend that the learned Tribunal ought to have fastened the liability with the driver, & owner of offending vehicle. He would pray to allow this appeal.

I have heard learned counsel for the appellant and perused the record.

Admittedly, the learned Tribunal while deciding the issue No.4 with regard to breach of insurance policy in absence of valid driving licence, in para 21, has categorically held that as per the Ex.D/1 (R.T.O. report), the record of the year 2001 was not available with the RTO Office Raipur and therefore, driving licence of the driver of the offending vehicle could not be verified and this fact is evident from evidence of Kartikram Bariha, Assistant Superintendent, RTO Office, Raipur.

Driving licence was produced by the driver of the offending vehicle, but the insurance company failed to establish this fact that the said driving licence was forged one, therefore, the learned tribunal decided this issue against the Insurance Company.

In  the  matter  of  Shamanna and another v. Divisional Manager Oriental Insurance Co. Ltd. and others, reported in (2018) 9 SCC 650, the Hon’ble Supreme Court while dealing with the similar issue in para 6 held as under :-

“6. As per the decision in Swaran Singh case (2004) 3 SCC 297, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third-party risks. The Tribunal is required to consider "as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver... does not fulfil the requirements of law or not will have to be determined in each case".

In the matter of Shamanna (supra), the Hon’ble Supreme Court held that onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions.

Considering the fact that the validity of the driving licence submitted by the driver of the offending vehicle was not verified in absence of record pertaining to the year 2001 from RTO Office, Raipur and further the insurance company could not prove the fact that the driving licence produced by Driver of offending vehicle was forged one, I do not find any good ground to interfere with the award dated 16.04.2019, passed by the learned Tribunal.

Accordingly, this appeal fails and is hereby dismissed.