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1997 Supreme(Ori) 189
IN THE HIGH COURT OF ORISSA
P.K. Misra, J.
M.A. RAZAK - APPELLANT
Versus
UNITED INDIA INSURANCE CO. LTD. AND OTHERS - RESPONDENT
M.A. No. 438 of 1995
Decided On : 11-09-1997
A.K. Rao, M. Sampat, S.K. Ratho, P.K. Sendha, M. Mohanty, S.C. Dash, M.A. Aboobaker and P.A. Khan, for the Appellant; A.K. Mohanty, R.N. Mohanty, B.N. Rath, M.K. Padhi, A.K. Dash and A.K. Samal, for the Respondent
An insurance company cannot avoid liability under a policy unless it specifically pleads and proves an exemption.
Headnote:
MOTOR ACCIDENT CLAIMS TRIBUNAL - AWARD - LIABILITY OF INSURANCE COMPANY - VIOLATION OF POLICY CONDITIONS - PLEA NOT RAISED - LIABILITY FASTENED ON OWNER - NOT JUSTIFIED.
Fact of the Case:
The owner of a truck appealed against the award of the Motor Accidents Claims Tribunal, which held him liable for the death of a cyclist caused by the truck. The Tribunal found that the truck driver was negligent and that the truck was loaded with chips, in violation of the insurance policy. The insurance company denied liability, arguing that the driver had only a learner's license and was not authorized to drive a loaded vehicle.
Finding of the Court:
The court found that the Tribunal erred in saddling the liability on the owner without a specific plea and issue raised by the insurance company. It held that the stray statement of a witness regarding the truck being loaded with chips was insufficient to outweigh the evidence of the driver and another witness that the truck was empty. The court also rejected the insurance company's argument that the driver should have been accompanied by a driver with a valid license, as this issue was not raised in the pleadings.
Issues: 1. Whether the insurance company was liable for the accident, given that the driver had only a learner's license and the truck was loaded with chips, in violation of the policy conditions? 2. Whether the owner could adduce additional evidence to prove that the truck was empty at the time of the accident.
Ratio Decidendi: 1. The insurance company cannot escape liability unless it specifically pleads and proves an exemption under the policy. In the absence of a specific plea, the insurer cannot adduce evidence to avoid liability. 2. Additional evidence cannot be admitted when the finding on the issue has already been recorded.
Final Decision: The appeal was allowed to the extent that the insurance company was held liable to pay compensation of Rs. 95,000 with interest to the claimants. The owner was reimbursed Rs. 10,000 from the amount deposited by him during the pendency of the appeal.
JUDGMENT :
P.K. Misra, J. - The owner of the vehicle is in appeal against the award of the Second Motor Accidents Claims Tribunal, Berhampur.
2. The claimants are the parents of the deceased who had died on account of an accident caused by the truck bearing registration No. ORG 6949. As per the case of the claimants, the deceased was going on a cycle towards Kathamentu Chhak, when the truck which was being driven in a rash and negligent manner dashed against him resulting in his death. The claimants claimed that the deceased who was aged about 20 years was working as a mason and was getting about Rs. 60/- to Rs. 70/- per day. Accordingly, they claimed an amount of Rs. 3,00,000/-.
The owner filed objection denying the allegations in the claim application. It was pleaded that there was no rash and negligent driving on the part of the truck driver. The claim of the claimants that the deceased was a mason was also specifically denied. The owner also took the plea that the truck had been validly insured with present respondent No. 1 and the liability, if any, should be borne by the insurance company.
The insurance company in its written statement while generally denying about the allegations made in the claim application had not taken any specific plea.
3. The Tribunal found that the death was on account of the accident caused due to rash and negligent driving of the truck driver. It was further found that deceased was a labourer and not a mason and his daily income was Rs. 25/-. Calculating Rs. 750/- to be monthly wages and deducting one-third towards own expenditure of the deceased, the Tribunal held that the annual dependency of the parents was Rs. 6,000/- and applying multiplier of 16, it calculated Rs. 96,000/- on that head. It further awarded Rs. 10,000/- towards pain and grief suffered by the parents and further sum of Rs. 10,000/- towards loss to estate. Accordingly, in all, it directed that a sum of Rs. 1,16,000/- is payable to the claimants. The Tribunal further held that since the driver was only holding a learner's licence and since the truck was loaded with chips, there was a violation of the conditions of the insurance policy and accordingly fastened the liability on the owner.
4. The owner in this appeal has challenged the award on the ground that there was no rash and negligent driving. He has also challenged the quantum assessed by the Tribunal and has submitted that even assuming that the claimants are entitled to get compensation, the liability should be borne by the insurance company.
Though a cross-objection had been filed on behalf of the claimants claiming higher compensation, the same has been dismissed as not pressed. Counsel for the claimants while supporting the findings of the Tribunal regarding negligence on the part of the truck driver and the quantum assessed by the Tribunal has submitted that the liability should be borne by the insurance company.
The learned Counsel appearing for the respondent No. 1, the insurance company, while supporting the arguments of the appellant on the questions of negligence and quantum, has submitted that the liability was rightly saddled on the owner, as there was violation of the policy.
5. Coming to the question of negligence, the Tribunal has placed reliance upon the evidence of PWs 2 and 3 who claim to have seen the accident. It is contended by the counsel for the appellant that PW 2 had not been examined by the police in the connected G.R. case and had not been named to be a person present at the time of accident in the charge-sheet and it is, therefore, submitted that his evidence should be discarded. It is further submitted that in view of the evidence of OPW 1, the driver, it should be held that there was no negligence on the part of the truck driver. From the evidence of PWs 2 and 3 it is apparent that while the deceased was travelling on a cycle, the truck came from the front and dashed against the cyclist. As against such evidence of PWs 2 and 3, OPW 1, the driver of t
