ORIENTAL INSURANCE CO. LTD Vs. SARASWATI

JUDGEMENT

(1.) THE Motor Accidents Claims Tribunal, Kathua awarded Rs.2,71,800/- as compensation to respondent Nos. 1 to 3 for the death of Vijay Kumar aged 18 years, who died because of the injuries received in Motor Accident that occurred on 23.04.2002 near Peer Baba Chenab Textile Mills, Kathua. THE appellant-Oriental Insurance Company Limited has questioned the quantum of compensation awarded by the Tribunal as also the findings of the Tribunal holding it liable to indemnify the insured-owner.

(2.) I have considered the submissions of the appellant's and claimants learned counsel. None, however, appeared for respondent Nos. 4 & 5. The records of the Tribunal too have been perused.

(3.) THE view taken by the Tribunal that having failed to explain the cuttings appearing in the official records whereby the entry appearing against Kuldeep Singh's name had been scored off substituting it with the entry in the name of Pawan Kumar, the appellant had failed to prove that the Licence issued in favour of Kuldeep Singh was not valid and effective, is found unsustainable because it was not for the appellant to explain the cuttings in the official records when it had discharged its initial onus to prove that the Driving Licence of the Driver employed by the owner was not effective and valid on the date of the accident by producing the official witness, who had testified that the Driving Licence issued under Serial No.3173 would permit the holder of the Licence to drive only Scooter and Car. On the basis of the evidence produced by the appellant, it needs to be held that the driver of the vehicle bearing Registration No. PB08K-9751 was not holding a valid and effective Driving Licence when the vehicle had met with the accident. However, in order to succeed in avoiding its liability to indemnify the insured, the appellant was required to lead evidence to prove that the insured had permitted the truck covered by the insurance policy to be driven by respondent No.4 knowing it well that he did not hold a valid and effective Driving Licence. No evidence has, however, been led by the appellant to this effect, and in this view of the matter, the appellant cannot avoid its liability to indemnify the owner in view of the law laid down by Hon'ble Supreme Court of India in Prem Kumari and others versus Prahlad Dev and others, reported as 2008 AIR SCW, 682 where dealing with the issue, it was held as follows:-