National Insurance Company Limited v. Smt. Jagmen Rajwade
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Misc. Appeal (C) No. 258 of 2017 National Insurance Company Limited through the Branch Manager, Branch Office Mirjapur, Khajanchi Ka Chauraha Wale Sliganj, Mirjapur (U.P.) Pin Code- 231001 Phone No. 05442253492 Fax No. 05442257973 ............... (Non-Applicant No.2/ Insurer of Vehicle No. U.P.-64-H-2881) ---- Appellant
Versus
1. Smt. Jagmen Rajwade W/o late Purushottam, aged about 34 years CasteRajwar, R/o Village- Shyamnagar, Police Station- Bhatgaon, TahsilPratappur, District- Surajpur, Chhattisgarh
2. Umeshwar S/o late Purushottam, aged about 19 years, Caste- Rajwar, R/o Village- Shyamnagar, Police Station- Bhatgaon, Tahsil- Pratappur, DistrictSurajpur, Chhattisgarh
3. Hrudaynarayan S/o late Purushottam, aged about 18 years, Caste- Rajwar, R/o Village- Shyamnagar, Police Station- Bhatgaon, Tahsil- Pratappur, District- Surajpur, Chhattisgarh
4. Kaushal Kumar S/o late Purushottam, aged about 16 years, minor represented through legal guardian mother Jagmen Rajwade, CasteRajwar, R/o Village- Shyamnagar, Police Station- Bhatgaon, TahsilPratappur, District- Surajpur, Chhattisgarh
5. Mansai S/o Balkhandi, aged about 54 years, Caste- Rajwar, R/o VillageShyamnagar, Police Station- Bhatgaon, Tahsil- Pratappur, DistrictSurajpur, Chhattisgarh ...............(Claimants)
6. Rajkumar S/o Shivprasad, aged about 28 years, Occupation- Driver, R/o Jampani, Police Station- Myorpur, District Sonbhadra (U.P.) .............(Driver of Vehicle No. U.P.-64-H-2881)
7. Ajeet Kumar Jaiswal S/o Bhagwanlal Jaiswal, Occupation- Vehicle owner, R/o Murdhwa, Renukut, District Sonbhadra (U.P.) .............(Owner of Vehicle No. U.P.-64-H-2881) ---- Respondents For Appellant :
Shri Goutam Khetrapal, Advocate For respondents 1 to 5 :
Shri D. N. Prajapati, Advocate
Hon'ble Shri Justice P. Sam Koshy Order On Board 06/07/2017 With the consent of the parties, the appeal has been taken up for final hearing.
2.
Challenge in the present appeal is the award dated 21.10.2016 passed by the Additional Motor Accident Claims Tribunal, Pratappur, District - Surajpur (CG) in Claim Case No.45/2015. Vide the impugned award the Claims Tribunal in a case of death of the deceased Purusottam has granted compensation of Rs. 9,24,310/- to the respondents 1 to 5. 3.
The primary ground raised for challenging the appeal and which has been vehemently argued by the counsel for the appellant is that the driver of the offending vehicle at the relevant point of time did not have a valid driving licence. Since there is a breach of policy condition in as much as the driver not having a valid licence, the fastening of the liability upon the Insurance Company by the Tribunal was not proper and justified. Therefore, the impugned award needs to be modified to the aforesaid extent and the liability may be transferred upon the owner. Counsel for the appellant further submits that the amount of rupees 1.5 lakhs awarded for love and affection is also on the higher side.
4.
Counsel for the respondent/claimants however opposes the appeal and submits that the finding of the Tribunal is based upon the evidences which have come on record and the same does not warrant any interference. 5.
Having heard the counsel for the parties and on perusal of the record what clearly reflects is that the Insurance Company has not led any evidence before the Tribunal to substantiate their contention or to prove the case that there was any sort of breach of policy condition. In the absence of any evidence led by the Insurance Company, the contention raised by the counsel
for the appellant is hard to accept and the said contention would therefore not be sustainable. So far as the contention of the counsel for the appellant that the amount awarded under love and affection is also on the higher side is concerned, the same is not acceptable in the light of the judgments of the Supreme Court in the case of Rajesh and others vs. Rajbir Singh and others1 and in the case of Kalpanaraj and others vs. Tamil Nadu State Transport Corporation2.
6.
At this Juncture, it would be trite to refer to the decision of this Court in MA No. 2547 of 2000 decided on 12.07.2006 wherein this Court in paragraphs- 1 & 2 has held as under:
"1. The only ground raised in this appeal by the insurance Company is that it had got the driving licence produced by the owner/driver of the truck verified and on verification, the Surveyor obtained reports from the Regional Transport Office, Jhansi and Regional Transport Office, Bilaspur that no such driving licence was issued by them.
The Insurance Company did not summon any officer from Regional Transport Office, Jhansi or Bilaspur. It did not even examine the Surveyor but only examined the official from the office who produced the report of the Surveyor. Mere proof of this document is not the proof of the contents therein. The best evidence was the production of original records of the concerned transport authorities who had allegedly issued the driving licence to the driver of the truck. Since the Insurance Company has not produced the original records, it cannot escape from its liability."
7.
In view of the aforesaid factual position and also the fact that there was no evidence adduced whatsoever by the Insurance Company before the Tribunal, the present appeal fails and is accordingly dismissed. Sd/- (P. Sam Koshy) JUDGE Bhola (2013) 9 SCC 54 (2015) 2 SCC 764