Point of Law : Insurer can take the defence that at the time of the accident, driver was having invalid/fake licence, however, the onus of proving that the Insured did not take adequate care and caution to verify the genuineness of the licence or he was guilty of wilful breach of the conditions of the policy or the contract lies on the insurer.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard learned counsel for the parties and perused the judgment and order impugned..

2. Despite notice, none has appeared and it was a defective appeal since 1998 and has been recently numbered and taken up for final disposal. The record is not necessary as the matter can be disposed of as there is Annexure appended to the appeal itself.

3. By way of this appeal, the Insurance Company has brought in challenge the judgment and award granting a sum of Rs.3,24,000/-for the death of the sole bread-earner of the respondents-claimants, who had filed claim petition claimed a sum of Rs.25,64,000/-for the death of Sudhir Mohan Taneja who died in the vehicular accident and left behind him his widow and three minor children. The matter has remained pending from 1998 till date.

4. Before this Court adverts to the brief facts, the accident having taken place is not in dispute. The respondents are the drivers and the owner of the truck which is insured with appellant which is also not in dispute. The main dispute is regarding the driving licence of the driver and, therefore, the insurance company could not have been fastened with liability to pay the claimants. Hence insurance company could not have been made liable and that the multiplier was wrongly applied.

5. The brief facts of this case are that on 22.4.1992, the deceased while he tried to board the bus, was no successful in boarding the bus in the meantime, the truck came from Delhi Road side, which was being driven rashly and negligently and dashed with the deceased. The driver of the truck tried to overtake the stationary bus from the wrong side without blowing horn, which was driven by one of the opponents and while the deceased was taken to hospital he succumbed to the injuries. The involvement of the truck and it being insured with the appellant is not in dispute, it is not disputed that the truck tried to overtake the stationary bus and, therefore, the issue of negligence has not been raised.

6. The deceased was 32 years of age. He was a medical representative and without waiting an FIR was lodged and the witnesses were examined.

7. It is an admitted position of fact that the driver of the truck did not appear and, therefore, when a truck driver tries to overtake a bus which was stationary from the left side, the driver of the truck has to be held to be negligent which this court holds negligence judgments. This Court concur with the tribunal that the driver of the truck was rightly held to be and, therefore, this Court concur with the tribunal as far as issue of negligence is concerned and the same and the submission made by learned counsel for appellant is negatived.

8. The issue of negligence has to be decided from the perspective of the law laid down by the Courts.

9. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance. Negligence can be both intentional or accidental which can also be accidental. More particularly, term negligence connotes reckless driving and the injured of claimants must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.

10. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 (Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :

“16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from