ICICI LOMBARD GENERAL INSURANCE COMPANY LTD Vs. AHILANDAM

JUDGEMENT

(1.) Questioning the liability fastened on the appellant-Insurance Company to pay compensation and then to recover from the owner of the offending vehicle, the present Appeal has been preferred. The negligent aspect has not been disputed.

(2.) Assailing the finding of the Tribunal fastening liability, Mr. K.S. Narasimhan, learned counsel for the appellant-Insurance Company submitted that the Tribunal has failed to apply the judgment of the Supreme Court in United India Insurance Co. Ltd. v. Gian Chand, 1997 ACJ 1065 and ought to have drawn an adverse inference against the owner and exonerated the appellant-Insurance Company. He further submitted that Article 142 of the Constitution of India cannot be invoked by the Tribunal and when the Supreme Court itself has thought it fit to refer the matter to a large Bench for consideration, as to whether any and recover could be ordered, the Tribunal ought not to have directed the appellant-Insurance company to pay the compensation to the injured and then to recover from the insured. In this context, he also placed reliance on a decision of the Supreme Court in Sardarin, 2008 1 TNMAC 294 and Oriented Insurance Company Limited v. Raj Kumari and others, 2007 AIR(SCW) 7149.

(3.) Before the Tribunal, the respondents 1 and 2 examined themselves as P.W. 2 and PW.1 respectively and reiterated the manner of accident. Ex. P1-FIR, Ex. P2-Post-mortem Certificate and Ex. P3-Legal Heir Certificate were marked on the side of the respondents/claimants. RWs.1 to 3 were examined on behalf of the appellant-Insurance Company and Exs.R1 and R2-ICICI Insurance Certificate, Ex.R3-Returned cover, Ex.R4-Consent receipt, Ex.R5-Investigation report and Ex.R6-Crime report were marked.