National Insurnace Co. Ltd. vs Smt. Kiran Devi And Others
2023 Latest Caselaw 18295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:145057
 
Court No. - 2
 

 
Case :- FIRST APPEAL FROM ORDER No. - 671 of 2003
 

 
Appellant :- National Insurnace Co. Ltd.
 
Respondent :- Smt. Kiran Devi And Others
 
Counsel for Appellant :- Arvind Kumar
 
Counsel for Respondent :- A. Jain,D.S. Rajpoot,S.C. Kushwaha
 

 
Hon'ble Saral Srivastava,J.

1. List has been revised. Learned counsel for the appellant is present. Learned counsel for the respondent is not present.

2. Heard learned counsel for the appellant.

3. The present appeal has been filed by the appellant-insurance company challenging the judgment dated 11.12.2002 passed by Additional District Judge/Motor Accident Claims Tribunal, Ferozabad in M.A.C. No.94/1999.

4. Challenging the award, learned counsel for the appellant has made two fold submissions. The first submission is that no driving licence of the driver of offending vehicle is available on record, and therefore, the Tribunal has illegally held that the offending vehicle truck No.UP-92B-0145 was being driven by a driver holding a valid driving licence. It is contended that once the owner discharges its burden of proving that the driver of the offending vehicle was holding driving licence, only then the burden would shift upon the insurance company to rebut that the driver of the offending vehicle was not holding valid driving licence. It is further contended that the deceased was travelling as gratuitous passenger in a goods vehicle, and therefore, insurance company is not liable to pay compensation as no premium covering risk of gratuitous passenger was paid by owner. Accordingly, it is submitted that the Tribunal has erred in law in fastening the liability upon the appellant to pay compensation.

5. Be that as it may, so far as the issue with regard to driving licence is concerned, once the insurance company has taken a plea that the offending vehicle was driven by a driver not holding valid driving licence, the burden was upon the insurance company to prove that the driver of the vehicle was not holding valid driving licence and the owner has committed breach of policy. In the instant case, the insurance company has failed to discharge its burden of proving the fact that the driver of the vehicle was not holding valid licence. In such view of the fact, this Court does not find any illegality in the order passed by the Tribunal on the issue of driving licence.

6. So far as the issue with regard to gratuitous passenger is concerned, the judgment of the Tribunal reveals that the insurance company did not get any issue framed on the said point and in such view of the fact, it is not open for the insurance company to take such plea for the first time in appeal in challenging the award.

7. For the reason given above, the appeal is dismissed without any order as to costs.

Order Date :- 20.7.2023

R.S. Tiwari