NEW INDIA ASSURANCE CO LTD Vs. SUREKHA

JUDGEMENT

(1.) The present appeal is preferred against the award dated 6.1.2004 passed by Motor Accident Claims Tribunal in Suit Nos. 1836/98 and 276/99, whereby the Tribunal awarded a sum of Rs. 3,74,000/- along with interest @ 9% per annum from the date of institution of the petition i.e., 9.1.1999 till its realisation.

(2.) The main grievance of the appellant insurance company is that the tribunal has not granted recovery rights to the insurer. Mr. Deepak Mallik, counsel for the appellant contended that the the owner and driver were proceeded ex parte by the Tribunal and the driver was having a fake driving licence at the time of driving the vehicle, therefore, had the owner and driver of the offending vehicle been appearing, it would have been proved beyond reasonable doubt that there was breach of conditions of policy as the licence was fake on which the driver was driving the offending vehicle. The counsel further urged that the Tribunal failed to appreciate the fact that both, the owner and the driver, deliberately failed to appear before the Tribunal and therefore an adverse inference should have been drawn against the owner and the driver. The counsel has placed reliance on the following judgments in support of his contentions:

(3.) Per contra, Mr.I.S. Kapur, counsel for respondent nos. 1 and 2 has vehemently refuted the contentions of counsel for the appellant. The counsel maintained that the onus to prove that the owner had the knowledge that the driver had a fake licence was on the insurer, which the insurer failed to prove, therefore, the Tribunal rightly denied recovery rights to the insurer. The counsel has relied on the following judgments in support of his contentions: