Bombay High Court
The Br. Manager, The N.I.C.Ltd vs Chandu Ramkrishna Kafanichor And ... on 30 March, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.141 OF 2007
APPELLANT: The Branch Manager, The National
Insurance Co. Ltd., MIDC Branch 13,
(Original
Gijre Bhavan, North Ambazari Road,
Respondent
Laxmi Nagar, Nagpur.
No.2 on R.A.)
ig -VERSUS-
RESPONDENTS: 1. Chandu S/o Ramkrishna Kafanichor,
aged about 26 years, Occ. Labour, R/o
Ori. Petitioner
Dawalameti, Post 8 Mile, Amravati
On R.A. Road, Nagpur.
Ori. Respondent 2. Jaika Company, Civil lines, Sadar Kaffi
No.1 on R.A. House, Nagpur.
Shri S. N. Dhanagare, Advocate for the appellant.
None for respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 30
MARCH, 2016.
th
ORAL JUDGMENT :
1. The present appeal filed under Section 173 of the Motor
Vehicles Act, 1988 (for short the said Act) takes exception to the
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judgment dated 3-7-2006 passed by the learned Member, Motor
Accident Claims Tribunal Nagpur by which the appellant has been held
jointly and severally liable to pay compensation of Rs.36,000/- to the
respondent No.1.
2. The respondent No.1 met with an accident on 20-8-2000
when he was riding a his bicycle. A truck insured with the appellant
which was coming from the opposite side gave a dash to the bicycle of
the respondent No.1. The respondent No.1 suffered various injuries and
hence, filed proceedings for grant of compensation under Section 166 of
the said Act.
The appellant filed its written statement and denied its
liability. It took the stand that the driver of the offending vehicle was
not holding any driving license and therefore, the Insurance Company
was not liable to pay compensation. After considering the evidence on
record, the Claims Tribunal awarded compensation of Rs.36,000/- with
interest.
3. Shri S. N. Dhanagare, learned Counsel for the appellant
submitted that though a specific stand was taken in the written
statement that the driver of the offending vehicle did not have any
driving license, said aspect was not considered by the Claims Tribunal
and instead the liability was fastened on the appellant. He submitted
that no document was placed on record to indicate that the driver of
said vehicle was having a driving license. He, therefore, submitted that
the Insurance Company could not have been made liable to satisfy the
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claim.
4. There is no appearance on behalf of the respondents.
However, with the assistance of the learned Counsel for the appellant, I
have perused the records as well as the impugned judgment.
5. The following point arises for consideration:
Whether the appellant can be absolved of its liability of
paying compensation?
6. In the written statement filed by the appellant below
Exhibit-21 a stand has been taken that the driver of the offending vehicle
was not holding any license. This plea, however, has not been sought to
be substantiated in any manner whatsoever. Though the said driver of
the offending vehicle was not made a party to the claim proceedings, it
was open for the appellant to have taken such steps in law to prove its
defense. However, no such steps were taken by the appellant to prove
its defense. It is well settled that if a plea with regard to breach of policy
is raised by the Insurance Company, the burden in that regard has to be
discharged by the Insurance Company. In the present case, except for
raising said plea in the written statement, nothing further has been
done. Therefore, on that basis the appellant cannot be absolved of its
liability. Hence, point as framed is answered by holding that the
Insurance Company cannot be absolved of its liability to satisfy the
award.
7. In view of aforesaid, the judgment dated 3-7-2006 in Claim
petition No.857/2000 is confirmed. The first appeal stands dismissed
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with no order as to costs.
The respondent no.1 would be entitled to receive the
balance amount of compensation with interest accrued thereon. No
costs.
JUDGE
//MULEY//
