In The High Court At Calcutta Civil Appellate Jurisdiction Appellate Side Present:-

The Hon’ble Justice Ananya Bandyopadhyay FMA No.224 of 2021 Sunita Pramanik & Ors.

vs.

ICICI Lombard General Insurance Co. Ltd. & Anr.

Mr. Saidur Rahaman … for the appellant/claimant Mr. Parimal Kumar Pahari … for the respondent No.1/insurance company.

Heard on: 3rd January, 2025.

Judgment on: 3rd January, 2025.

Ananya Bandyopadhyay, J:-

1. The Learned Advocates representing the appellants/claimants as well as respondent No.1/insurance company are present.

2. The instant appeal had been preferred by the appellants/claimants against the judgment and award dated 31st July, 2019 passed by the learned Judge, Motor Accident Claims Tribunal, Fast Track Court-3, Berhampore, Murshidabad in M.A.C. Case No. 490 of 2014.

3. An application under Section 163A of the Motor Vehicles Act was filed by the appellants/claimants on account of the death of the victim in an accident which occurred on 13th September, 2014 at about 8.30 p.m. with the involvement of the offending vehicle being one Bolero Van bearing Registration No. WB-57B/6649 which approached from Berhampur towards Morgram and collided with the victim at an exceeding speed driven recklessly resulting in the death of the victim at Berhampure Medical Collage and Hospital on 26th September, 2014.

4. The Learned Tribunal after recording the evidence, disposed of the issues framed and awarded a sum of Rs.4,17,500/- along with an interest @ 6%

per annum from the date of filing of the claim application i.e. 11.11.2014 till the realization of the awarded amount.

5. The compensation was to be paid by the owner of the offending vehicle considering the observation as mentioned in disposing of issue No.3 framed by the learned Tribunal. The learned Tribunal opined that the driving licence marked as Ext. A series along with other documents marked as Ext. B series appeared to be faked and exonerated the respondent No.1/insurance company to disburse the compensation in favour of the claimants/appellants.

6. The Hon’ble Supreme Court held the following in IFFCO Tokio General Insurance Co. Ltd. v. Geeta Devi1

12. Thereafter, in National Insurance Co. Ltd. v. Swaran Singh, a 3- Judge Bench of this Court dealt with the interpretation of Section 149 of the Act of 1988. The cases before the Bench involved, amongst others, instances where the driving licence produced by the driver or owner of the vehicle was a fake one. The Bench noted that Section 149(2)(a) opened with the words:‘that there has been a breach of a specified condition of the policy’, which would imply that the insurer's defence of the action would depend upon the terms of the policy. It was observed that an insurance company which wished to avoid its liability is not only required to show that the conditions laid down in Section 149 (2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. Such a breach on the part of the insured must be established by the insurer to show that the insured used or caused or permitted to be used the insured vehicle in breach of the provisions. The Bench went on to state that where the insurer, relying upon the violation of law by the assured, takes exception to pay the assured or a third party, it must prove a willful violation of the law by the assured. Noting that the proposition of law is no longer res integra that the person who alleges breach must prove the same, the Bench observed that an

1 2023 SCC OnLine SC 1398

insurance company would be required to establish the said breach by cogent evidence and in the event an insurance company fails to prove that there has been breach of the conditions of the policy on the part of the insured, such an insurance company cannot be absolved of its liability.

13. Further, in the context of cases where the driver's licence was found to be fake, the Bench observed that the question would be whether the insurer could prove that the owner wa