K.M. PURUSHOTHAMAN Vs. RAMESH PRABHU AND OTHERS

JUDGEMENT

(1.) The second respondent in O.P.(M.V)No.1071/1997, the owner of the autorickshaw has filed this appeal against the direction of the Tribunal allowing the insurance company to realise the amount of compensation deposited, on the ground that there is violation of policy conditions. The reason stated in the Award at paragraph 10 reads as follows:

(2.) Ext.A11 is the driving licence issued to the first respondent, the driver of the vehicle, to drive a three wheeler. That was issued in 1994, valid up to 2014. The Tribunal did not consider Ext.A11. We also note that no evidence was adduced by the insurance company to show that the owner (insured) was negligent in entrusting the autorickshaw to the driver, that there was fundamental breach of the policy conditions and that the absence of licence is the cause of the accident. It is submitted that there was no badge and, therefore, there was no proper licence. But, merely because a copy of the charge sheet was produced for driving without a valid driving licence, it cannot be stated that the driver was not having a valid driving licence. The contention that there was no badge at the time of accident was not mentioned in the written statement filed by the insurance company before the Tribunal. Further, a three member bench of the Supreme Court in National Insurance Company Ltd. Vs. Swaran Singh and others, AIR 2004 Supreme Court 1531 held at paragraph 105 as follows:

(3.) In this case, that burden was not discharged by the insurance company. Against a claim for Rs. 2,50,000/=, the Tribunal awarded only Rs. 54,500/= with interest. We are of the view that since fundamental breach of policy conditions or negligence of the insured is not proved, the right of recovery granted to the insurance company is not correct and the insurance company is liable to pay the compensation. If the claim was filed by an employee or owner, such a view could not have been taken. But, here, it is third party liability and the observations of the Supreme Court in Swaran Sing's case can be squarely applied. On the facts and circumstances of this case, the insurance company cannot recover the amount from the insured and it has to indemnify the insured.