Insurance Company Limited v. Boya Bademma @ Bodemma & Anr.

- The Civil Revision Petition is directed against the Judgment, dated 07-01-2008, in M.V.O.P.No.244 of 2006 on the file of IV Additional District and Sessions Judge-cum-Chairman, Motor Accident Claims Tribunal, Kurnool, whereunder and whereby, the petition filed under Sections 140 and 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act’) by

first respondent herein claiming compensation of Rs.25,000/- for the injuries sustained by him in the motor vehicle accident, was allowed in part, granting compensation of Rs.4,000/- with costs and interest.

The revision petitioner herein is the second respondent/insurance company before the Claims Tribunal. The two contentions that are raised in this revision viz (i) the passengers in the trolley attached to the tractor are not covered by the insurance policy (ii) the driver of the offending vehicle was not holding a valid driving license to drive transport vehicle. Hence, he prays to set aside the impugned judgment.

Section 115 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) provides that the High Court may call for the record of any case which has been decided by any Court subordinate to it, wherein no appeal lies, to satisfy itself on three aspects i.e, when a subordinate Court appears to have exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of jurisdiction, illegally or with material irregularities i.e., in breach of some provision of law, or by committing some error of procedure in the course of trial which is material and have effected ultimate decision.

It is the case of the first respondent/claimant that he along with his village persons was travelling the Tractor Trailer bearing Regn. No.AP-21-V-7316/7217 on 12-08-2005 to go to Pandipadu village for getting manure, but due to rain they could not able to transport and when they were coming back on trolley, near Pandipadu village, the driver of the said tractor drove the vehicle in a rash and negligent manner with high speed and lost control over the vehicle and as a result, it turned turtle.

Except taking a plea that the trolley attached to the tractor is not insured, there is no evidence adduced by the petitioner herein to substantiate the same. Ex.B-1, which is the insurance policy marked with consent, shows that the crime vehicle involved was insured with the petitioner from 09-12-2004 to 08-12-2005. The accident occurred on 12-08-2005. Therefore, the tractor trailer was having a valid insurance coverage. The finding of the Claims Tribunal cannot be shown to be perverse or incorrect.

Coming to the license, the Claims Tribunal observed that R.W.1 has not filed any authenticated document to show that the driver is possessing driving license to drive non-transporting vehicle. There cannot be any dispute that the burden is on the petitioner- Insurance Company to plead and establish that the driver was not having a valid driving license to drive the transport vehicle. Section 10 of the Act does not differentiate the license for transport vehicle or non- transport vehicle. Section 10(2)(e) of the Act provides for a license to drive transport vehicle. When the driver is having license to drive a non- transport vehicle, it cannot be said that there is a violation of policy issued by insurance company. Further the mere breach itself would not be a ground for exonerating the insurer from its liability to pay compensation, unless it is further established that the breach was so fundamental as to have contributed to the occurrence of the accident. In the absence of any evidence, the pleas taken by the petitioner cannot be accepted.

The Civil Revision Petition is, therefore, devoid of merit and accordingly, dismissed. There shall be no order as to costs. _​ ​_____________________ JUSTICE K.C.BHANU 3rd February, 2011 AMD ​