NEW INDIA ASSURANCE CO LTD Vs. SHAKKERWATI

JUDGEMENT

(1.) -The appeal is arising out of an order dated 3rd February, 2001 passed by the Motor Accident Claims Tribunal, Etawah awarding a sum of Rs. 2,52,000 alongwith interest from the date of presentation of claim petition till its realisation to be paid to the claimants on account of death of the deceased. The insurance company was made liable to pay compensation, therefore, they have preferred this appeal inspite of no application having been made under Section 170 of the Motor Vehicles Act, 1988 (hereinafter called "the Act") to permit it to contest the cause before the Tribunal.

(2.) IN the appeal learned counsel appearing for the insurance company contended that no explanation has been given by the claimant opposite parties as to why one Sri Shyam Kishore was shown as driver in the F.I.R. when subsequently one Sri Rashid Khan was introduced as driver by the owner at the relevant time. But we find from the impugned order that there is an explanation about lodging of the F.I.R. against Sri Shyam Kishore, the cleaner of the vehicle. It has been mentioned that the owner has given the tempo to Sri Rashid Khan to drive and he was driving at the time of accident. After the accident, Sri Rashid Khan, the driver ran away and Sri Shyam Kishore, the cleaner was caught and F.I.R. was lodged against him when the police had filed the charge-sheet against him. The owner of the tempo had admitted the accident and filed the copy of the valid driving licence of the driver Sri Rashid Khan. It has been stated in the judgment that even if it is accepted that Sri Shyam Kishore was driving the tempo then it was the duty of the insurance company to prove that inspite of having no licence, he was driving the vehicle. But the same has not been done by the insurance company.

(3.) IT is understood that Mr. Rakesh Bahadur wanted to give emphasis on the proviso under the aforesaid rule. He specifically submitted that the owner, in absence of the insurance company, conveniently avoided the driver. He relied upon a judgment in Oriental Insurance Co. Ltd. v. Meena Variyal and others, (2007) 5 SCC 428 : 2007 (3) AWC 2116 (SC), to establish that under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act as to whether a claimant before the Tribunal is entitled to compensation for an accident that has occurred due to alleged negligence of the driver. The Supreme Court was annoyed on the issue by saying why should not a Tribunal insist on the driver of the vehicle being impleaded as party when a claim is being filed?