National Insurance Co. Ltd v. Gurdayal Kaur & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. R. C. Kapoor, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : This is appeal by insurer of the offending vehicle challenging Award dated 04.02.2009 of learned Motor Accident Claims Tribunal, Hisar thereby awarding compensation of Rs.2,01,000/- to claimant- respondent no.1 Gurdayal Kaur on her petition filed under Section 163-A of the Motor Vehicles Act, 1988 (in short – the Act). I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the vehicle in question, which stood insured with the appellant, was not involved in the accident. The contention cannot be accepted on behalf of insurer-appellant because admittedly, the appellant had not taken permission from the F. A. O. No. 2551 of 2009 2 Tribunal to contest the petition by filing application under Section 170 of the Act.

Learned counsel for the appellant next contended that Raghbir Singh (respondent no.2 herein/respondent no.1 in the claim petition), driver of the vehicle, was not having any driving license and therefore, owner insured Ramji Lal (respondent no.3 herein) contravened the terms and conditions of the insurance policy and consequently, the appellant-insurer should be absolved of its liability to satisfy the Award. To buttress this argument, it was also contended that the appellant had moved application before the Tribunal for summoning the driver as witness along with driving license, but no order was passed thereon by the Tribunal. The contention cannot be accepted. Learned counsel for the appellant states that on the application for summoning respondent no.1 as witness with driving license, the Tribunal ordered deposit of requisite diet money. Consequently, it cannot be said that no order was passed on the application.

As regards the contention that the driver was not having any driving license, the same cannot be accepted because the driver Raghbir Singh appeared in the witness-box as RW-1 and was cross-examined on behalf of the appellant- insurer, but not even a single question was put to him whether he possessed any driving license or not, as is evident from the statement of the said witness read out by learned counsel for the appellant-insurer himself. In view thereof, it cannot be said that the said driver was not holding any driving license. On the other hand, adverse inference arises against the appellant on this aspect because on its behalf, no question was put to the concerned witness regarding his driving license. In view of the aforesaid, finding no merit in the instant appeal, the same is hereby dismissed. The amount of Rs.25,000/- deposited by the appellant with the F. A. O. No. 2551 of 2009 3 Registry of this Court while preferring this appeal be remitted to the Tribunal. May 21, 2009 monika ( L. N. MITTAL ) JUDGE