SHANTI Vs. AWADH NARAYAN JAISWAL

JUDGEMENT

(1.) This appeal is filed by the claimants against the award passed by the Additional Motor Accidents Claims Tribunal, Mauganj, District Rewa. Claims Tribunal has dismissed the application of the applicants on the ground that offending vehicle was not insured with the insurance company and in the absence of eyewitness negligence on part of driver of the truck in not proved.

(2.) The facts of the case are that on 17.8.1995, deceased Kamta was travelling in a truck bearing No. MBA. 4447, driven by Ruab Ali, respondent No. 2 and owned by Awadh Narayan Jaiswal, respondent No. 1. The truck dashed against a tree which resulted in death of Kamta. The claimant Nos. 1, 3, 4 and 5 are the legal representatives of the deceased Kamta. Insurance company has taken the plea that driver was not having valid licence. The insurance company has also denied their liability to pay compensation. However, insurance company has reserved its right about the insurance of vehicle, if policy of the said vehicle is produced in the court. Owner and driver were proceeded ex pane and insurance company has contested the claim. The driver and the owner have not denied the factum of insurance as well as accident. It is settled position of law that burden to disprove negligence rests upon the driver of the offending vehicle. Since the driver has not filed written statement as well as he has not entered the witness- box, therefore, it will be deemed that he has admitted the contents of the application filed by the claimants. Shanti, AW 1, who is widow of the deceased has deposed that Kamta died in accident and she filed copy of first information report, Exh. P1, to prove that Kamta died in accident arising out of use of motor vehicle, i.e., truck No. MBA 4447. There is no cross-examination pertaining to death and accident by the insurance company. In the circumstances, finding of Claims Tribunal that claimants had not proved the negligence is erroneous and is set aside and it is held that in the absence of evidence of driver and written statement by owner and driver that Kamta died in truck accident on account of rash and negligent driving by the driver of the truck.

(3.) The next question involved in the case is whether the truck was insured with insurance company, respondent No. 3. The respondent Nos. 1 and 2 have filed an application under Order 41, rule 27, Code of Civil Procedure and have filed copy of insurance policy. Said application was filed on 11.10.2000 but no reply has been filed by insurance company either admitting their liability or denying their liability. Almost 5 years had elapsed and insurance company has not filed any reply to the said application, therefore, the document is taken on record and it is admitted in evidence. On going through the certificate of insurance, it is found that said truck, MBA 4447, was insured with Oriental Insurance Co. Ltd., respondent No. 3 and premium was paid. Schedule of premium shows that the vehicle was insured and premium for the person employed in connection with the operation and/or maintenance and for loading or unloading was paid and for the increased property damages, additional premium was paid. However, schedule and conditions of agreement have not been filed either by the claimants or by the insurance company. In the circumstances, it is held that vehicle was insured with respondent No. 3 on the date of accident.