Rajasthan High Court - Jodhpur
The New India Assurance Co. Ltd vs Smt. Prem Devi And Ors. ... on 16 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:42195]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Misc. Appeal No. 1400/2015
The New India Assurance Company Limited, through its
Authorized Agent, 1st, Abhay Chambers , Jalori Gate, Jodhpur.
----Appellant
Versus
1. Smt. Prem Devi Wife of Shri Ishwar Lal Gurjar
2. Ishwar Lal Son late Shri Chhoga Lal Gurjar
Both residents of village Krangarh, Post Tiloli, Tehsil Asind,
District Bhilwara.
3. Prem Chand Regar Son of Shri Mangi Lal Regar, Resident of
Dahimatha, Tehsil Mandal, District Bhilwara.
----Respondents
For Appellant(s) : Mr. Mukul Singhvi.
For Respondent(s) : Mr. Nayab Khan, R 1 & 2/claimants.
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment
16/10/2024
1. The instant misc. appeal has been filed by the appellant/non-
claimant No.1 under Section 173 of the M.V. Act, 1988 assailing
the judgment and award dated 01.06.2015 passed by learned
Judge, Motor Accident Claims Tribunal, Bhilwara in MAC Case
No.1174/2013, whereby the learned Tribunal has awarded
compensation in favour of respondents No.1 and 2/claimants to
tune of Rs.2,71,180/- along with interest @ 6% p.a. from the date
of filing the claim petition i.e. 16.07.2013. The liability to satisfy
the award was fastened upon all the non-claimants jointly and
severally.
[2024:RJ-JD:42195] (2 of 5) [CMA-1400/2015]
2. Briefly stated, the facts of the case are that the respondents
No.1 and 2/claimants laid a claim claiming compensation on
account of death of their son, namely, Heeralal, who lost his life
on 20.11.2012 while under treatment on account of injuries
suffered by him in the accident, which took place on 18.11.2012.
In the claim petition, it was stated that on 18.11.2012, the non-
claimant No.2 while plying his motorcycle bearing registration
number RJ-06-SX-2555 rashly and negligently hit Heeralal, as a
result of which Heeralal sustained grievous injuries. Heeralal died
during treatment. The respondents No.1 and 2 filed claim petition
claiming compensation of Rs.14,80,000/- along with interest.
3. The claim petition was contested by non-claimant
No.1/appellant (Insurance Company) by filing reply. In the reply,
it was stated that the accident had not occurred due to fault of the
rider of the motorcycle. It was stated that the insurance company
is not liable to cover the risk of third party. Objection with regard
to rider of motorcycle not having valid and effective licence was
also taken. It was thus stated that on account of violation of
conditions of the policy, the insurance company was not liable to
pay the compensation.
4. Despite service of the summons, the non-claimant No.2 did
not appear and, therefore, exparte proceedings were drawn
against him on 20.03.2014.
5. On the basis of pleadings of the parties, the learned Tribunal
framed five issues. In support of their case, the claimant No.2
examined himself as AW.1 and various documents were exhibited
viz. Ex.1 to Ex.34A. On behalf of non-claimant No.1, one Gyanmal
[2024:RJ-JD:42195] (3 of 5) [CMA-1400/2015]
Khateek was examined as NAW.1 and policy was exhibited as
Ex.A.1.
6. The learned Tribunal after hearing the counsel for the parties
and considering the evidence led by the respective parties vide
impugned judgment and award dated 01.06.2015 partly allowed
the claim petition and awarded compensation of Rs.2,71,180/-
under various heads in favour of respondents/claimants along with
interest @ 6% p.a. from the date of filing the claim petition. The
learned Tribunal held both the non-claimants jointly and severally
to satisfy the award.
7. A Coordinate Bench of this Court vide order dated
04.08.2015 admitted the instant appeal and after hearing learned
counsel for the appellant, rejected the stay application.
8. Learned counsel for the appellant/non-claimant No.1 submits
that the learned Tribunal has erred in deciding the Issue No.3 and
4 in favour of claimants. Learned counsel for the appellant submits
that the learned Tribunal has not considered the insurance policy
(Ex.A/1), which was a conditional cover note and on account of
non-fulfillment of the conditions of the policy that the vehicle
should be driven by a person having valid and effective licence,
the insurance company could not have been held liable to pay the
compensation. Learned counsel for the appellant submits that on
account of breach of policy conditions, the learned Tribunal has
erred in fastening the liability upon the insurance company.
9. Learned counsel for the appellant further submits that the
learned Tribunal has grossly erred in awarding compensation of
Rs.2,71,180/-, inasmuch as the facts and evidence led by the
parties has not been considered in its true letter and spirit.
[2024:RJ-JD:42195] (4 of 5) [CMA-1400/2015]
10. On the other hand, learned counsel appearing for the
respondents/claimants vehemently opposed the submissions made
by counsel for the appellant insurance company.
11. I have considered the submissions made by counsel for the
parties at length and have perused the material available on
record.
12. This Court finds that the learned Tribunal while deciding the
issues No.3 and 4 has observed that the non-claimant No.2 was
the owner and driver of the offending vehicle and it was insured
with appellant/non-claimant No.1. The learned Tribunal also
observed that the non-claimant No.2 had not received any notice,
and no such notice was produced before the learned Tribunal.
Further, the NAW.1 Gyanmal in his testimony accepted that no
investigation with regard to driving licence was conducted and
also accepted that the insurance company was liable to cover the
third party risk. NAW.1 Gyanmal also accepted that with regard to
driving licence, no investigation or inquiry was conducted from the
RTO office. In the considered view of this Court, the onus to prove
the said issue was upon the appellant/insurance company, which it
has not discharged and therefore, the learned Tribunal has not
committed any error in holding the insurance company liable to
satisfy the award. Further, it was the liability of the non-claimant
No.1/appellant, the onus to prove that the rider of the offending
vehicle was not having the valid driving licence was upon the
insurance company, which in the instant case, the insurance
company has not proved.
13. This Court is thus of the considered view that the learned
Tribunal has not committed error while holding the insurance
[2024:RJ-JD:42195] (5 of 5) [CMA-1400/2015]
company liable to satisfy the award. Accordingly, in view of above
discussion and considering the ratio decided by Division Bench of
this Court in the case of National Insurance Co. Ltd. v. Yogesh &
Ors. : 2010 (2) WLN 181 (Raj.), the instant misc. appeals
preferred by the appellant deserves to be dismissed.
14. The misc. appeal is, therefore, dismissed. No costs.
(DR. NUPUR BHATI),J
96-DJ/-
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