ANCHALIKA GRAMYA BANK Vs. REBATI NANDA

JUDGEMENT

(1.) The owner of a motorcycle alleged to be involved in an accident causing serious injuries to the claimant has questioned the correctness of the award given by the Second Motor Accidents Claims Tribunal, Northern Division, Sambalpur (in short the ''Tribunal').

(2.) The background in which the claim was lodged is as follows : According to the claimant, on 31-12-1980, the claimant, a school teacher, suffered serious injuries on account of an accident caused by the offending motor-cycle (ORR 2719) undisputedly belonging to the present appellant; the motor-cycle in question was being driven by one Rama Chandra Purohit, respondent No. 2 (hereinafter referred to as the 'rider'); on account of the injuries sustained, the claimant was hospitalised for about three months and thereafter continued the treatment. A claim of Rs. 50,000/- was made. The present appellant, who is described hereafter as the owner, disputed the claim on the ground that the vehicle in question was not involved in the accident, and respondent No. 2 had no authority to use the vehicle. Though the rider was set ex parte, at the time of hearing his lawyer was present and put some questions in cross-examination to the claimant. The Oriental Fire and General Insurance Company Ltd., (in short the 'Insurer') also appeared and challenged the maintainability of the claim so far as it was concerned. Eight issues were framed by the Tribunal and on adjudication it was held that the claimant was entitled to Rs. 24,200/-, the amount being payable by the owner, as the rider had no driving licence and the insurer had no liability.

(3.) In this appeal, it has been straneously urged that the rider had absolutely no connection with the appellant, it is evident from the evidence on record that he is not an employee and there is no evidence to show that he had been authorised to use the vehicle; in any event in view of the insurance covering the vehicle, the insurer had liability to indemnify the award made by the Tribunal and the insurer has been erroneously excluded from the liability, merely because the rider had no driving licence. It is urged that the insurer should have brought material on record to show that the rider had no driving licence and should not have remained content to take advantage of non-appearance of the rider. Strong reliance has been placed on a decision of the Apex Court reported in 1985 ACJ 397, Narcinva V. Kamat v. Alfredo Antonio Doe Martins. On behalf of the insurance company it has been submitted that the policy did not cover any unauthorised use and therefore, the liability has been rightly fastened on the owner.