ORIENTAL INSURANCE CO. LTD Vs. ANIL KUMAR JHA

JUDGEMENT

(1.) THIS Appeal is directed against a judgment dated 29.11.2004 passed by the Motor Accident Claims Tribunal whereby the Claims Tribunal awarded a compensation of Rs. 2,60,000/- in favour of the Claimants for the death of Ranju Devi who died in a motor vehicle accident which occurred on 21.07.1999.

(2.) THE sole contention raised at the time of the hearing of Appeal is that the Appellant/Insurance Company successfully proved the breach of the terms of the policy; thus the Appellant was entitled to recovery rights against the owner and the driver of the offending vehicle (Respondents No. 4 and 5 herein).

(3.) I have before me testimony of R3W1 Uma Kant, Assistant Divisional Manager, Oriental Insurance Company. Apart from proving the charge-sheet Ex.R3W1/1, whereby Respondent No.4 was prosecuted for an offence u/s 3/181 of the Act for not holding a driving licence at the time of the accident, proved notice under Order XII Rule 8 CPC (Ex.R3W1/3) which was served upon Respondents No. 4 and 5 (driver and the owner). The postal receipts and the UPC were also duly proved. R3W1's testimony was not challenged in cross-examination by Respondents No. 4 and 5. The Appellant/Insurance Company did whatever was in its power to prove that the insured committed willful breach of the terms of the policy. The insured on the other hand, preferred not to respond to the notice Ex.R3W1/3 and to contest the proceedings. The onus, in the circumstances, shifted on the insured to prove that he had taken all the steps to ensure that the vehicle is not driven by a person not possessing a valid driving licence. Since, the Appellant/Insurance Company successfully proved the breach of the terms of policy, it was entitled to recovery rights on the basis of the judgment in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342 and United India Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338.