Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 96 of 2007 Appellant :- National Insurance Co. Ltd. Respondent :- Smt. Natthoo Begum And Others Counsel for Appellant :- A.C. Nigam Counsel for Respondent :- Lal Chand Sahu
Hon'ble Saral Srivastava,J.
Heard Sri A.C. Nigam, learned counsel for the appellant and Sri Lal Chand Sahu, learned counsel for the respondents.
The present appeal has been preferred against the judgement and order dated 09.10.2006 passed by the Motor Accident Claim Tribunal/Special Judge (E.C. Act), Bareilly in MACP No.699 of 1997, whereby the Tribunal has awarded Rs.1,80,000/- as compensation to the claimants respondents for the death of one Alla Noor in an accident on 30.09.1997.
Claimants respondents instituted a claim petition for death of one Alla Noor who was stated to be cleaner/assistant on Tata 407 No.UP25/8250 and was travelling on the said truck on 30.09.1997. It was further alleged that when the truck reached near Anwla Ramnagar crossing at about 10:30 A.M., the driver of truck turned the vehicle negligently due to which he lost control over the truck and the truck over turned. In the said accident, Alla Noor suffered injuries and died. He was drawing a salary of Rs.2000/- per month.
Challenging the award, learned counsel for the appellant has contented that the owner has committed breach of policy inasmuch as truck was a goods carriage vehicle whereas it was carrying about 32 passengers on the truck. Thus, the Insurance Company is not liable to pay compensation. He has further contended that in the FIR, name of driver of truck was stated to be Rajendra but the owner had filed driving license of one Yashmin Khan who was not driver at the time of accident and thus, the finding of the Tribunal in respect of driving license is illegal and not sustainable in law.
Per contra, learned counsel for the respondents submits that no case has been pleaded by the Insurance Company in regard to the fact that the truck was carrying 32 passengers. He further submits that the Insurance Company has also not set up a case that the driver of truck was Rajendra and not Yashmin Khan. He submits that the FIR was lodged by one Lallu and not the owner of the truck and in absence of any pleading by the Insurance Company that the truck was driven at the time of accident by Rajendra, the finding of the Tribunal in respect of driving license cannot be said to be a perverse finding.
I have considered the submissions of the parties and perused the record.
The Insurance Company has not pleaded in the written statement that the owner has committed breach of policy as the truck was being used for carrying passengers. No issue was got framed by the Insurance Company nor there was any evidence on record to infer that 32 passengers as alleged by the Insurance Company were travelling on the truck. Thus, the submission of the learned counsel for the appellant has no substance, and is accordingly rejected.
The submission of the learned counsel for the appellant in respect of finding of Tribunal regarding driving license is also devoid of merit inasmuch as the Insurance Company has not taken any plea in the written statement that the truck was driven at the time of accident by Rajendra and not Yashmin. The Tribunal has recorded finding that the Insurance Company has failed to discharge its burden to establish that vehicle was plied by a person not holding a valid driving license. Merely because the name of Rajendra has surfaced in the FIR and charge-sheet as driver of offending truck cannot be ipso facto prove that truck was driven by Rajendra at the time of accident. Since the Insurance Company has not pleaded in the written statement nor it led any evidence to prove that Rajendra was driving the offending vehicle, hence, the submission of the learned counsel for the appellant in respect of breach of policy by the owner on account of the fact that the offending vehicle was driven by a person not holding valid driving license is misconceived and is rejected.
For the reasons given above, the appeal lacks merit and is accordingly dismissed.
Order Date :- 27.2.2019 S.Sharma