National Insurance Company Limited

vs

Ashwani Kumari and others

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

Reserved on: 26.08.2020

Pronounced on:01.09.2020

Brief Facts of the Case

The National Insurance Company Limited an appeal against the judgment and award dated 28th April 2017, whereby the claim petition filed by respondent No.1 has been allowed and the appellant has been directed to pay a sum of R.88,045- along with pendent elite and future interest @ 7.5% per annum to the claimant. Therefore, the insurer is absolved of its liability to indemnify the insured.

Before appreciating the ground of challenge raised by the insurer, it would be appropriate to notice a few facts, which are relevant for the disposal of this appeal. On, 12.02.2013 at about 6.30 p.m., near NaiBalla Camp, a motor vehicle (Nano Car) bearing Regd.No.JK02BA-1085, being driven by its driver-respondent No.3 and the scooter bearing No.JK02AA-5286 caused the accident.

The respondent No.1-claimant was seriously injured and rendered permanently disabled to the extent of 5%. A claim petition came to be filed by respondent No.1 before the Tribunal. On being put to notice, the insurer, owner as well as driver appeared and filed their objections. Thereafter, the owner and driver chose not to appear and were, accordingly, set ex-parte.

In order to discharge the onus of proof, the claimant besides entering himself in the witness box, also examined one Kishore Kumar as his witness to substantiate his claim. The insurer has also examined the owner and driver of the offending as its witnesses to discharge the burden of proof of issue No.3. Appreciating the evidence on record and the position of law, the Tribunal held issue Nos. 1 and 2 proved in favor of the claimant. However, issue No.3 was held not proved by the appellant, and the Tribunaldirected it to pay a sum of Rs.88,045/- as compensation along with interest to the claimant in indemnification of the insured.

Submission of the Insurer

Mr. Sanjay Dhar, learned counsel for the insurer, submits that the insurer discharged its onus of proof of issue No.3 by leading cogent evidence and once it was proved that the license held by respondent No.3, at the time of the accident, was fake, the appellant-insurer was absolved of its liability to indemnify the insured. It is further submitted that the Tribunal, after recording a finding that the license of the driver of the offending vehicle was fake, was not right in directing the insurer to pay compensation to the claimant in indemnification of the insured, i.e. owner of the offending vehicle.

Observation of the Court

The Court is of the view that the ground of challenge raised by the insurer to assail the award has no substance. It is true and as is otherwise discernible from the impugned award, the insurer had succeeded in proving before the Tribunal, but it has nowhere come in the evidence or testimony of any of the witnesses of the insurer that the owner had engaged the services of the driver even after being aware that the license possessed by him was fake and invalid.

The position of law on the point is no longer res Integra.

Admittedly, in the instant case, the insurer has succeeded in proving that the driving license held by the driver was fake. However, the evidence oral as well as a documentary produced by the insurer before the Tribunal, nowhere suggests that the insured was guilty of negligence and had failed to exercise reasonable care before engaging respondent No.3 as a driver to drive the offending vehicle to find out as to whether the driving license did not fulfill the requisites of law.

The decision of the Court

For the foregoing reasons, the appeal of the insurer is found to be devoid of any merit, hence the same is dismissed along with the connected application. The award of the Tribunal is upheld. The amount, if deposited, shall be released in favor of the claimant in terms of the award of the tribunal after proper identification and verification.