Point of Law : Motor Accident claim - Insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence.

JUDGMENT :

Heard Ms. M. Choudhury, learned counsel appearing for the appellant as well as Mr. H. Baruah, learned counsel representing the respondents and Mr. A. Dutta, learned counsel appearing for the United India Insurance Com. Ltd.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (as amended) against the Judgment and Award dated 12.05.2016 passed by the MACT No.1, Kamrup (M), Guwahati in MAC Case No. 161/2011.

3. On 18.04.2010, at about 4.25 p.m., the claimant was travelling in a vehicle bearing regd. No. AS-01/BC/6051. At the time another vehicle No.AS-01-BC-8651 coming from the said direction knock the other vehicles. As a result, the vehicle No. AS-01-BC-6051 turned turtle. The claimant sustained grievous injuries. The claim application was filed seeking compensation.

4. The owner of the vehicle No.AS-01-BC-8651 contested the claim by stating that the vehicle was duly insured by the appellant/insurance company and the driver of the vehicle had a valid driving licence.

5. The appellant/insurance company contested the case by filing another written statement and the appellant claim that if the policy condition found to be violated, the appellant shall not be liable pay compensation.

6. On the basis of the pleadings of both sides, the tribunal framed the following issues-

i. Whether claimant, Md. Moidul Islam, was sustained injuries in the alleged road accident dated 18.04.2010 involving vehicle bearing No. AS-01-BC-8651 and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?(sic)

ii. Whether the claimant is entitled to get any compensation for the injuries sustained by him/her and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?(sic)

7. The claimant/respondent examined one witness. The appellant/insurance company also examined one witness.

8. On the basis of the evidence on record, the tribunal awarded Rs.1,08,000/-along with interest @ 6% per annum from the date of the filing of the claim petition.

9. The only ground taken by the appellant/insurance company is that the driver of the offending vehicle did not a have valid licence.

10. Ms. Choudhury, has referred to the evidence of the witness examined by the appellant and submitted that the said witness has proved that the driving licence of the driver of the offending vehicle was not actually issued by the DTO, Nalbari.

11. Ms. Choudhury has relied upon the decision of the Supreme Court in Pappu and Ors. –vs-Vinod Kumar Lamba and Anr., reported in 2018 3 SCC 208 paragraphs 12, 13 and 19 are quoted as under-

12. This Court in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733, has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.

13. In the present case, Respondent 1 owner of the offending vehicle merely raised a vague plea in the written statement that the offending Vehicle No. DIL 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, Respondent 1 did not enter the witness box or examine any witness in support of this plea. Respondent 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. Respondent 1 owner of the offending vehicle did not produce any evidenc