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1 - 9 of 9 (0.76 seconds)Party Name : National Ins. Co.Ltd vs Ashalata Bhowmik & Ors on 17 February, 2017
22. Facts of the present case are similar to those of National
Insurance Co. Ltd. Vs. Ashalata Bhowmik and others : 2018(4)
RCR (Civil) 211 and observations therein are fully applicable to the
facts of present case. In the present case, deceased-Dev Karan is
proved to be owner-driver of the Tata Sumo at the time of the
accident and to have died due to injuries suffered in accident caused
by his own rash and negligent driving of the Tata Sumo. The
appellants/claimants, being his legal representatives, are not entitled
to payment of compensation under Section 163-A of the M.V. Act.
However, deceased-Dev Karan being owner-driver is covered by
personal accident cover under Section III for owner-driver of
2,00,000/-. No doubt, the claimants did not produce driving licence
of deceased-Dev Karan but for claiming its exoneration from liability
the onus of proving that deceased-Dev Karan did not have any valid
and effective driving licence was on respondent No.2 who would
have failed if no evidence was produced.
The Oriental Insurance Company Limited vs Monika And Others on 12 December, 2011
Vs. Alfredo Antonia Deo Martins and others : AIR
1985 (Supreme Court) 1281 and The Oriental Insurance Co. Ltd.
Vs. Monika and others : 2012 (1) PLR (Punjab and Haryana High
Court) 605 where in similar facts onus of proof was held to lie on
insurance company and the same having failed to produce any
Vinod Kothiyal
2019.06.25 10:56
I attest to the accuracy and
authenticity of this document
FAO No.276-2011 -12-
evidence to prove absence of valid and effective driving licence was
held liable. In the present case, respondent No.2 failed to produce
any evidence as to deceased-Dev Karan not having valid and
effective driving licence at the time of the accident and issue No.3
framed in this regard was also decided against respondent No.2. In
view of this finding even the grant of recovery rights to respondent
No.2 by the Tribunal qua payment of compensation to Smt. Anguri
and Smt. Kamlesh was wrong. In these facts and circumstances of
the case, respondent No.2 is not exonerated from its liability to pay
compensation to the appellants/claimants in terms of the insurance
policy on the ground of deceased-Dev Karan not having valid and
effective driving licence at the time of the accident and the
appellants/claimants are entitled to payment of amount of
2,00,000/- from respondent No.2-Insurance Company in discharge
of its contractual liability under Insurance Policy copy Ex.RX-6. The
Tribunal erred in not awarding the compensation to the claimants
under the personal accident cover extended to owner-driver by the
comprehensive insurance policy copy Ex.RX-6 and the impugned
award dismissing the claim petition is liable to be set aside to that
extent.
Section 166 in The Motor Vehicles Act, 1988 [Entire Act]
Oriental Insurance Co. Ltd vs Rajni Devi & Ors on 22 April, 2008
(iii) the liability under Section 163-A of the M.V. Act is
on the owner of the Vehicle. A person cannot be both a
claimant as also a respondent liable to pay the
compensation. Therefore, claim under Section 163-A of
the M.V. Act can be raised by third party only and claim
by or at the behest of the owner is not maintainable
under that provision. (See Oriental Insurance Company
Limited Vs. Rajni Devi, 2008 ACJ 1441 (Supreme
Court) and Ningamma and another Vs. United India
Insurance Co. Ltd.: 2009(3) RCR (Civil) 435).
Section 279 in The Indian Penal Code, 1860 [Entire Act]
Section 304A in The Indian Penal Code, 1860 [Entire Act]
Section 337 in The Indian Penal Code, 1860 [Entire Act]
The Insurance Act, 1938
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