DIVISIONAL MANAGER REP BY THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO LTD REGIONAL BANGALORE BY ITS MANAGER Vs. MINAKASHI

JUDGEMENT

(1.) THE appellant ? insurance company has come up in this appeal challenging the liability saddled on it by the II Addl. Civil Judge (Sr.Dn.) at Gulbarga (for short, ?MACT?) in MVC No.279/2003 dated 26.04.2007. THE respondents 1 to 3 were the claimants before the MACT which petition was lodged by them claiming compensation on account of the death of Mahantappa who died in a road traffic accident on 2.8.2002 at about 12.30 a.m. on Lokapur ? Mudhol road. According to the claimants, on the ill fated day, the deceased along with others had been to Saundatti Yellavva temple in a vehicle bearing No.KA-32/M-9423 and while returning, on account of the rash and negligent driving of the driver of the vehicle the accident occurred which resulted in the death of Mahantappa. THE appellant insurance company filed the written statement. In the written statement it is only contended that the deceased was not earning Rs.3,000/- per month and that the claimants have not produced any documents to prove the income and age and denied the rash and negligent driving of the vehicle by its driver and it also denied the driver having valid driving licence to drive the vehicle on the date of accident and that the insurance company had issued notice the claimants? advocate to furnish the correct insurance particulars and inspite of the same the owner of the vehicle has not produced the insurance particulars and also sought permission to raise other grounds by making an amendment to the written statement. THE owner of the vehicle did not contest the case.

(2.) BASED on the above pleadings, the following issues were framed by the court below:

(3.) THE main contention of the learned counsel in the appeal before us is that the tribunal has committed an error in fixing liability on the insurance company and since the vehicle in question was taken on hire by deceased and others and that the hiring of the vehicle by the owner of the deceased and others was contrary to the terms and conditions of the insurance policy issued by the appellant company and in such an event the risk of such passenger has not been covered, therefore, it has no liability. According to him, in view of the FIR produced by the claimants the case of the appellant has been proved, therefore the appeal has to be allowed. Placing reliance on the judgment of the Supreme Court in ORIENTAL INSURANCE COMPANY vs PREMALATHA SHUKLA reported in 2007 AIR SCW 3591 contends that when a document has been admitted without any objection, the contents of the aid document is said to have been proved. THErefore, relying upon paragraph 15 of the judgment Mr.Nandagouda contends that it has been proved by the insurance company that the risk of the deceased has not been covered under the policy in view of the breach of the terms and conditions of the policy.