NEW INDIA ASSURANCE CO. LTD. Vs. SANJAY KR.

JUDGEMENT

(1.) COMMON questions of law arose for consideration in the captioned 7 appeals and hence the same are being decided by a common order. The issue involved is, if it is established that the driver of the vehicle at the time of the accident was not holding a valid driving licence would entitle the insurance company to avoid liability under the policy to pay any money to the third party or are the rights of the insurance company to recover from the insured, after paying the sum awarded to the injured/claimants of the deceased. An ancillary question arises for consideration as to what should be the standard of proof for the insurance company to establish breach of the policy of insurance by the assured.

(2.) IN FAO. No. 476/03, MAC.APP. No. 562/05, MAC.APP. No. 28/05, MAC.APP. No. 46/05 and MAC.APP. No. 154/05 grievance of the insurance company is that no recovery rights have been granted. Save and except FAO No. 476/2003, only contention urged is that the finding that the insurance company is liable to satisfy the award in favour of the claimants is contrary to law. In FAO No. 476/2003 it is additionally urged that the finding by the Tribunal that the insurance company has failed to establish that the driver of the vehicle at the time when the vehicle met with the accident was not holding a valid driving licence is contrary to evidence on record.

(3.) FILTERING the facts a little further, owners of the vehicles involved in the accident which are the subject matter of FAO No. 476/2003 and MAC. APP. No. 562/2005 failed to contest the proceedings before the learned Judge, MACT and in spite of a notice under Order 12 Rule 8 CPC issued by the insurance company during trial to the assured and the driver to produce the original driving licence held by the driver concerned, failed to respond to the notice. In MAC.APP. No. 28/2005, MAC.APP. No. 46/2005, MAC.APP. No. 154/2005 and MAC.APP. No. 236/2005 the owners appeared and gave testimony.