NATIONAL INSURANCE COMPANY LIMITED Vs. M SANTHANAM

JUDGEMENT

(1.) THIS appeal has been filed by the Insurance Company disputing its liability to pay the award amount of Rs.1,65,000/- with 15% interest on the ground that the driver of the vehicle, which caused the accident, was granted licence to drive one type of vehicle but, at the relevant point of time he was driving another type of vehicle.

(2.) THE facts of the matter are dealt with in detail by the Tribunal and, therefore, they are not repeated, especially when the controversy is only with regard to the above question. THE Insurance Company has adduced the evidence necessary to establish the fact that the driver did not have the licence for driving the lorry bearing registration No.TN-69 1011 which caused the accident. THEy have examined R.W.1, an employee in their Company, and marked Ex.R-1 copy of the policy and Ex.R-2 which is the returned cover of the registered letter sent to the insured asking her to give details of the licence of the driver. Ex.R-3 though marked, does not find a place in the list of documents. But it is referred to in the impugned award. Ex.R-3, the extract of the licence register, has been marked through R.W.2, Junior Assistant working in the office of Licencing Authority, and this clearly shows that the licence given to the driver was only to drive light motor vehicles and not the lorry which is a Heavy Motor Vehicle and therefore the appellant is entitled to recover the compensation that has been paid from the insured. In this regard, the learned counsel for the appellant cited the decision reported in 1994(1) L.W. 567-(M/s.National Insurance Company Limited, Gobichettipalayam v. Thulasi and 2 others), wherein a Division Bench of this Court held that when the best evidence that can be adduced by the insurer has been placed before the court, the burden shifts on to the person who wants to prove the positive, namely, that the driver had a licence. THE relevant portion of the above cited judgment reads as follows:

(3.) WE have considered the totality of the circumstance and what would be the just and reasonable compensation to be awarded to the claimants. The family lost their breadwinner and the annual income has been fixed only at Rs.10,800/-. Though the claimants are the widow, mother and three children, only Rs.3000/- has been awarded towards loss of love and affection. Nothing has been given towards loss of consortium. Therefore, we are of the view that as regards the interest, the interest could be awarded at the rate of 12% per annum. Since the driver of the insured's vehicle did not have the licence for driving the lorry, we hold that the appellant is entitled to get reimbursement from the insured in respect of the compensation that they have been made to pay to the third party/claimants by virtue of this accident. Learned counsel for the appellant submits that the appellant has deposited the entire award amount with interest. The appellant Insurance Company is entitled to recover from the insured the amount deposited, without having to initiate separate proceedings to recover the same.