THE HON’BLE SRI JUSTICE V.SURI APPA RAO M.A.C.M.A. Nos.1982 of 2003, 4336, 4337, 4516, 4571, 4420 and 4278 of 2008 Dated 22nd January, 2014 Between:
S.Bashu Sab & others .. Appellants-claimants and United India Insurance Co. Ltd. & another .. Respondents THE HON’BLE SRI JUSTICE V. SURI APPA RAO M.A.C.M.A. Nos.1982 of 2003, 4336, 4337, 4516, 4571, 4420 and 4278 of 2008 COMMON JUDGMENT:
All these appeals are directed against the common order dated 13.11.2002 passed in O.P.Nos.33, 34, 154, 155, 156, 157 and 158 of 2001 respectively by the Chairman, Motor Accident Claims Tribunal- cum-Additional District Judge, Hindupur, (for short ‘the Tribunal’) whereby the Tribunal allowed the claim petitions filed by the claimants directing the first respondent-owner of the vehicle to deposit the award amounts exonerating the second respondent-insurer of the crime vehicle from the liability.
Aggrieved by the quantum of compensation awarded by the Tribunal, respective claimants filed these appeals seeking enhancement of compensation and also to make the Insurance Company liable to pay compensation awarded to the claimants.
Relevant facts leading to present appeals are as under:
On 25.03.2000 deceased and other injured persons went to Doddaballapur to attend the marriage of relative of the deceased, boarded auto rickshaw bearing No.AP02-7-8567 as there was no bus conveyance at that time, on 28.03.2000 when the auto reached Navodaya Vidyalaya, Lepakshi, at about 8.30 p.m. a lorry bearing No.ADI 5041 came in opposite direction from Hindupur side being driven by its driver at high speed in rash and negligent manner and dashed against the auto rickshaw due to which the deceased Shaik Abdul Zabiulla (son of the claimants in O.P.No.33 of 2001) died on the spot and other claimants sustained injuries. The injured were shifted to Government Hospital, Hindupur, for treatment. Lepakshi Police registered a case in crime No.18 of 2000 for the offence under sections 338, 337 and 304A of Indian Penal Code and 134 (a) & (b) and 181 of M.V. Act alleging that the accident occurred due to the negligence of the driver of the auto rickshaw and that he was not holding valid driving license at the time of accident.
First respondent-owner of the vehicle involved in the accident remained ex parte. Second respondent-insurer of the vehicle filed counter stating that the accident occurred due to the negligence of the driver of the auto and that the driver of the auto was not having valid driving license at the time of accident. It is also contended that at the time of accident, the insurance policy was also not in force.
On behalf of the claimants, PWs 1 to 4 are examined and Exs.A.1 to A.12 are marked. Considering the entire evidence on record, the Tribunal allowed all the claim petitions awarding compensation to the claimants against the first respondent-owner of the vehicle alone exonerating the second respondent-Insurance Company from paying liability on the ground that the first respondent violated the terms and conditions of the policy by entrusting the vehicle for driving to the person who was not having valid driving license.
Learned counsel for the appellant submits that it is for the Insurance Company to prove that the driver of the vehicle was not holding driving license and the contents of the charge sheet filed by the Police after investigation that the driver of the auto was not holding driving license cannot be looked into in the absence of specific proof by adducing evidence by the competent person.
Second respondent-Insurance Company also taken specific plea in written statement that as on the date of accident, the policy issued by R.2 for the crime vehicle was expired and was not in force. But, unfortunately, either the claimants or the Insurance Company did not choose to file copy of the policy in order to ascertain whether the policy was in force or not as on the date of accident and the second respondent did not choose to examine any of its officers to prove that the policy was expired and it was not in force as on the date of accident as was contended in the written statement filed by it before the Tribunal.
Unless, it is established that the policy was in force by the date of the accident, this Court or any other Court cannot fasten liability on the Insurance Company for payment of compensation awarded to the claimants. Therefore, I feel it is a fit case to remand the matters to the Tribunal to record evidence on the above aspect.
Therefore, all the matters are remanded to the Tribunal to record evidence to the extent of existence of policy in force after giving opportunity to both the parties and dispose of the matters on merits within a period of two months from the date of receipt of a copy of this order along with case records. Both parties are directed to adduce evidence in support of their rival contentions before the Tribunal.
The impugned award is modified only to extent referred to above. There shall be no order as to costs.
Registry is directed to communicate a copy of this order along with records to the Tribunal forthwith.
Miscellaneous petitions pending in these appeals, if any, shall stand closed.
V.SURI APPA RAO, J
Dated 22nd January, 2014
SUR