Insurance companies must prove policy breaches; mere assertions without evidence are insufficient.

JUDGMENT :

RADHAKISHAN AGRAWAL, J.

1. This appeal is by the appellant/insurance company against the award dated 14.10.2014 passed by Additional Motor Accident Claims Tribunal, Kunkuri, District: Jashpur (C.G.) in Motor Accident Claim Case No. 7 of 2012 awarding total compensation of Rs. 4,62,142.85 (Rupees four lakhs sixty two thousand one hundred forty two and eighty five paisa only), while fastening liability on the non-applicants, being a driver, owner and insurance company (appellant, respondents No. 4 & 5 respectively herein) jointly and severally.

2. As per the averments made in the claim petition, on 28.01.2012, at 04:00 pm, the deceased Yashwant Paikra was coming to his home from Village: Bagbahar, while driving his Hero Honda Motorcycle bearing registration No. CG 14 M 5431. At that time, the respondent No. 4 who was driving the Truck Tanker bearing registration No. CG 13 ZC 1121 (hereinafter referred to as ‘offending vehicle’) rashly and negligently, dashed the deceased, as a result of which, the deceased received serious injuries and he succumbed to his injuries. At the relevant time, the offending vehicle was owned by respondent No.5 herein insured with the appellant/insurance company.

3. On claim petition being filed by the claimants under Section 166 of the Motor Vehicles Act claiming compensation of Rs. 29,30,000/- under various heads, the learned Tribunal considering the evidence led by the parties, awarded the amount as mentioned in Para 1 of this judgment.

4. Learned counsel for the appellant-Insurance Company submits that the offending vehicle, a truck-tanker, was built for transporting hazardous substances and at the time of the accident, the driver, NA- 3 Sanjay Jha, possessed a driving license authorizing him to drive Heavy Goods Vehicles (HGV), but he was not authorized to drive such vehicles carrying hazardous substances like the offending vehicle in question, as there was no endorsement on his license permitting him to drive such vehicles, therefore, the driver was not having valid driving license to drive the offending vehicle carrying hazardous substances, which is a breach of policy conditions, therefore, the insurance company is not liable to pay the amount of compensation.

5. On the other hand, learned counsel for respondent No. 5, the owner of the offending vehicle, submits that the offending vehicle was insured with the appellant-insurance company at the time of the accident. The insurance company in its written statement filed before the Claims Tribunal has neither pleaded that the offending vehicle was transporting hazardous substances nor submitted any evidence on record to prove thereof. Such argument was not taken before the Claims Tribunal and is being raised for the first time in this appeal. Additionally, the insurance company has utterly failed to prove that the offending vehicle was used for transporting dangerous/hazardous substances/goods and it is the bounden duty of the insurance company to establish any breach of policy conditions, which it has categorically failed to do in the present case.

6. I have heard learned counsel for the parties and perused the material available on record.

7. So far as the issue No. 1 framed by the learned Claims Tribunal is concerned, it was answered in affirmative by holding that deceased Yashwant Paikra died on account of vehicular accident caused by driver/respondent No. 4 i.e Sanjay Jha (now died), of offending vehicle which was being driven in a rash and negligent manner.

8. It is not disputed that at the time of the accident, the appellant–Insurance Company was the insurer of the offending vehicle. The learned Claims Tribunal