National Insurance Company Limited v. Dilchand Sahu And Others

AFR HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 13 of 2008 • National Insurance Company Limited Branch Office Korba Through Its Divisional Manager Divisional Office Taha Complex Ring Road No.2 Bilaspur CG ---- Appellant

Versus

1. Dilchand Sahu, S/o Bhajgovind Sahu, aged 21 years, R/o Village Kataud, PO Kansa, PS and Tahsil Dabhara, Distt. Janjgir-Champa (CG)

2. Nanki @ Shyam Kumar Chanda S/o Dharamlal Chanda, aged 31 years, R/o Kataud P.O. Kasna Ps & Tahsil Dabhara Distt- Janjgir Champa CG.

3. Manmohan S/o Sadaram Chandra R/o Kataud Po Kansa PS & Tahsil Dabhara Distt- Janjgir Chamap CG ---- Respondents For Appellant : Shri Dashrath Gupta, Advocate.

For Respondent No.1 : Shri H.S. Patel, Advocate.

For Respondent No.2 : None For Respondent No.3 : Shri Ravindra Sharma, Advocate.

Hon'ble Shri Justice Pritinker Diwaker Judgment On Board 11/08/2016 Challenge in this appeal is to the award dated 4.4.2007 passed by Additional Motor Accidents Claims Tribunal, Sakti, Distt. JanjgirChampa in MACC No.09/2006 fastening the liability upon the appellant/insurance company for payment of compensation of Rs.1.15 lacs to the claimant/respondent No.1.

02. On 11.11.2004 a tractor bearing registration No.CG-11-A-3855 and trolley bearing registration No.CG-11-A-3856 was being driven by

respondent No.2 and the claimant along with other labourers were sitting in the trolley. On account of rash and negligent driving by respondent No.2, the vehicle turned turtle as a result of which respondent No.1/claimant suffered grievous injuries. He filed a claim case for compensation under various heads. Learned Tribunal by the impugned award has awarded a total compensation of Rs.1.15 lacs in favour of the claimant with interest @ 6% p.a. fastening the liability upon the appellant/insurance company to satisfy the same.

03. The defence of the insurance company before the Tribunal was that the persons were travelling in the tractor-trolley unauthorizedly, there was breach of policy conditions, risk of such persons was not covered and therefore, the insurance company cannot be held liable.

04. Counsel for the appellant submits that once it has come in evidence that the claimant was travelling in the vehicle as passenger whereas no premium was paid for such passenger, on account of there being breach of terms and conditions of the policy, the insurance company is not liable to pay any compensation. He submits that one Hilarius Kujur was examined by the insurance company to establish this fact.

05. While supporting the impugned award, it has been argued on behalf of the respondents that the claimant was not travelling as a passenger in the trolley but was employee of the owner of the vehicle and was engaged for agricultural purposes. Thus, risk of the claimant was covered under the policy. They further submit that neither any specific plea was taken by the insurance company that risk of the

labourers travelling in the vehicle was not covered under the policy nor any evidence to this effect was adduced by it properly. Therefore, the Tribunal was fully justified in fastening the liability upon the insurance company for satisfying the award. It has been further argued that arising out of the same accident, claim case No.31/2005 was filed by Sonau and another on account of death of one Kalinga Yadav, in that case award of Rs.2.12 lacs with interest @ 6% p.a. was passed in favour of the claimants, against which an appeal (MA No.388/2006) was preferred by the insurance company, which has already been dismissed by this Court vide order dated 26.6.2006. They submit that once in a case arising out of the same accident, the plea of insurance company has been negated by this Court and the insurance company has satisfied the claim, present appeal is also liable to be dismissed.

06. Heard learned counsel for the respective parties and perused the material on record.

07. It is a settled position of law that the insurance company cannot shirk its liability merely by filing insurance policy. It is necessary for the insurance company not only to make specific pleading in its written statement but it is also required to prove the same by leading cogent and legally admissible evidence. It is also a settled legal position that in absence of a pleading, the evidence, if any, adduced by the parties cannot be considered. Unless factual foundation has been laid down in the pleading and evidence to that effect has been adduced, no argument is permissible to be advanced on that particular point. In this case, the insurance company has utterly failed to discharge its

onus of pleading and proving the breach of terms and conditions of the insurance policy. It has failed to prove that on the date of accident, the persons, including respondent No.1/claimant, were travelling in the trolley as passengers. On the contrary, as per claim of the claimant, he was travelling in the vehicle as agricultural labourer employed by the owner of the vehicle. Even the witness examined by the insurance company has failed to prove as to on what basis he is deposing that the injured persons were travelling as passengers. Furthermore, arising out of the same accident, an appeal (MA No.388/06) was also preferred by the insurance company, which was dismissed by this Court vide order dated 26.6.2006 and as has been informed, the insurance company has also satisfied by the award in the said case.

08. Thus, considering the facts and circumstances of the case in light of the settled legal position, in particular the fact that arising out of the same accident, the appeal filed by the insurance company has already been dismissed by this Court and the award has been satisfied by the insurance company and further, considering the fact that the insurance company has failed to adduce proper evidence regarding breach of policy conditions etc., this Court finds no justification for interfering with the award impugned.

09. In the result, the appeal being without any substance is liable to be dismissed and is, accordingly, dismissed.

Sd/ (Pritinker Diwaker) Judge Khan