Icici Lombard General Insurance ... vs Mr. Bhadalya Jatrya Sawara And Anr
2021 Latest Caselaw 11905 Bom

                                                                                        FA-748-13.doc

BDP-SPS-TAC




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BHARAT
 DASHARATH
 PANDIT



                                           CIVIL APPELLATE JURISDICTION
 Digitally signed by
 BHARAT
 DASHARATH
 PANDIT
 Date: 2021.08.31
 17:42:21 +0530



                                            FIRST APPEAL NO.748 OF 2013

                       ICICI Lombard General Insurance
                       Company Limited                                    ....Appellant
                             V/s
                       Bhadalya Jatrya Sawara and Anr.                    .....Respondents
                       ----
                       Mr. Nikhil Mehta i/b KMC Legal Venture for the Appellant.
                       Ms. Jeeni Antony i/b Mrs. R. Kundu for Respondent No.1.
                       -----
                                        CORAM: NITIN W. SAMBRE, J.

                                             DATE:    AUGUST 26, 2021
                       P.C.:-

                       1]       By consent, appeal is taken up for final disposal at this stage.



                       2]       This is an appeal by Respondent No.2-Insurance Company in

Claim Petition No. 240 of 2009 decided by Claim Tribunal on

25/6/2012, thereby awarding following compensation:-

"O R D E R

1] The petition is allowed partly with proportionate costs.

2] The respondent No.1 and 2 are jointly and severally directed to pay sum of Rs 1,76,495/- to the petitioner including N.F.L. amount.

                                                              FA-748-13.doc


         3]        The respondent No.1 and 2 are further

jointly and severally directed to pay interest on the above amount at the rate of 6% p.a. from the date of petition till its actual realization.

4] Award be drawn accordingly."

3] Mr. Mehta, learned Counsel appearing for the Appellant-

Insurance Company would invite attention of this Court to the driving

license-Exhibit-60, so as to claim that in absence of holding of valid

and effective driving license at the time of accident, breach of policy

conditions can be inferred. According to him, driving license-Exhibit-

60 was in the name of one Amarprit Kuljitsingh, resident of Sion,

Mumbai which was issued for driving two wheeler and not the

insured vehicle.

4] If we appreciate the said contention in the light of observations

made in para 22 of the impugned judgment, it can be noticed that

perusal of Exhibit-60 does not support the case of Insurance

Company. If Insurance Company was of the view that driver was not

holding valid driving license, document at Exhibit-67 should have

been in the name of driver who is involved in the accident in question.

FA-748-13.doc

Rather Exhibit-67 speaks of Altaf Hussain who admittedly was not

driving the offending vehicle. In that view of the matter, even if the

Appellant has tried to prove the said fact by examining Mr. Narayan

Pawar, Senior Clerk in the R.T.O., Tardeo, Mumbai, the evidence on

record does not establish the case of the Appellant-Insurance

Company to that effect. In that view of the matter, contention of Mr.

Mehta that there should have been order of pay and recover cannot be

accepted. As such, appeal lacks merit and same stands dismissed.

( NITIN W. SAMBRE, J. )