PREMIER INSURANCE CO LTD Vs. NILANJAN DUTTA

JUDGEMENT

(1.) Is it necessary for the claimant to establish that there has been no breach of conditions of the policy of insurance by the insured, before obtaining a judgement against the insured and/or the insurers ? Upon whom lies the onus of proof that there has been a breach of specified condition of the policy of insurance ? In short, the main question for determination is whether the insurer can avoid its liability to satisfy the judgement against person insured in respect of 3rd party risk by taking up a plea that the claimant did not establish that there was no breach of the condition of the policy of insurance. Naturally, the question involves consideration of the provisions contained in Ss. 95 and 96 of the Motor Vehicles, Act, 1939, for short "the Act".

(2.) This is an appeal by the insurer u/s. 110D of "the Act" against an award made by the Member, Motor Accidents Claims Tribunal, Kamrup at Gauhati in M.A.C. Case No. 86(K)/72 awarding compensation of Rs. 18,000/- to the claimant with cost and interest.

(3.) Indeed, it is tragic how the proceedings in claim cases are delayed. The incident happened on 16-2-1969 when the victim of the incident Nilanjan was aged about 11 or 12 years but the appeal still pends before this Court. 16 years have rolled by since the accident but the case has not been finally decided. The boy is now a grown up young man of 27/28 years. On a technical plea as to whether the amount of compensation awarded is payable by the insurer or the insured, the matter is pending in this High Court since 1975. It is one of those cases where the oft quoted phrase "Justice delayed is justice denied" is fairly and squarely applicable. Is it a man made injustice ? Instead of answering the question let us bring the appeal to a close.