ANITA Vs. NIRMALA

JUDGEMENT

(1.) ALL the cases are connected and the appeal is by the owner of the vehicle who had been denied the right of indemnity from the insurer. The vehicle which was involved in the accident was a private car of Tata Sumo make and the policy cover provided for a package insurance that covered the risk to passengers in a vehicle. There was a specific prohibition against user of the vehicle for hire.

(2.) AT the trial, the witnesses had been questioned with reference to how they were travelling in the vehicle and PW1, PW3 and PW13 had also categorically stated that the fare had been settled and that they had to pay the fare at the time of getting down from the vehicle. As regards the claims arising from the death, the character of those persons had not been specifically set down. Learned counsel appearing for the owner-appellant reads to me the evidence of some of the witnesses who had said that they had not paid the fare, but they had not known the owner or the driver. Significantly, they were not prepared to admit whether other persons, some of whom were relatives, had paid the fare or not. Learned counsel would contend that when the insurance company was denying the fact of liability, it could do so only under any of the grounds permitted under the terms of the policy. If the insurance company was, therefore, contending that there had been a violation of terms, the burden was on the insurer to prove that there had been a violation by the payment of hire charges.

(3.) THE burden which is cast on the insurer in a situation where a vehicle is driven for hire or reward would be invariably a matter of inference only. Where there is an admission by the owner himself that would conclude the issue. If the owner was not even prepared to step into the witness box to deny that he had no knowledge of any admission by his driver to secure a hire or he had specifically prohibited the driver from collecting the hire, I would hold that the best of evidence which was possible of being placed by the owner himself was not placed. I would draw, therefore, an adverse inference by the non-examination of the owner of the vehicle, coupled with the fact, that there were three witnesses at least who spoke about the fact that they were in the vehicle undertaking to pay the hire. THE Tribunal has made a proper inference that vehicle had been used for hire and therefore, there had been a violation of terms of policy.