To exclude liability for policy breach, an insurer must prove willful infringement. Absent a prior enquiry into the nature of the breach, courts may equitably apportion liability between the insurer and insured, especially when the breach is not clearly willful or the delay in proceedings is significant.

Judgment :

Biswaroop Chowdhury, J.

The appellant before this Court was an opposite party in a case under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment and Award dated 22-04-2014 passed by Learned Additional District Judge 13th Court Alipore in. MAC Case No-29/2011.

The case of the respondent no. 1, and 2/claimants before the Learned Trial Court may be summed up thus:

On 03.02.2011 at about 10 a.m. while the victim was proceeding on his bicyle at that time the offending vehicle bearing No. WB-15A/7295. (Lorry) dashed against him and as a result the victim sustained injuries and died on the spot. The victim used to earn Rs. 3,200/- per month. Pursuant to filing of this case notice was issued upon the opposite parties. Opposite Party Bazaz. Allianz General Insurance Co. Ltd. contested the case by filing written statement but opposite party Kalimata Transport the appellant herein did not appear to contest the case. ISSUES were framed and evidence was adduced by the claimants and insurance company. The Learned Trial Judge by Judgment and Award dated 22-04-2014 was pleased to dispose of the claim case by observing and directing as follows:

‘Hence ORDERED that the claim case be and the same is hereby allowed on contest against the O.P. No. 2, Bajaj Allianz General Insurance Co. Ltd. and ex-parte against the OP. 1, the owners of the offending vehicle. The petitioners are entitled to get a sum of Rs. 2,92,500/- towards compensation. They are also entitled to get interest @8% per annum from the date of filing of the case till realization of the awarded amount. The O.P. No. 1 owner of the offending vehicle is directed to pay the above amount of Rs. 2,92,500/- to the petitioners by issuing two account payee cheques of Rs. 1,46,250/- each in the names of Jamir Mallik @ Jamir Hossain Mallik, and Marjina Mallik, parents of the deceased victim along with interest @8% per annum from the date of filing of the case till realization of the above amount within two months from this date, failing which the petitioners shall have the liberty to put the order in execution.’

The Appellant vehicle owner being aggrieved by the Judgment and Award passed by the Learned Trial Court has come up with the instant appeal.

Heard Learned Advocates for the parties. perused the evidence adduced and materials on record.

Mr. Kumar Learned Advocate for the appellant/vehicle owner submits that the Learned Trial Judge erred in not appreciating the contents of Exhibit No. 2 and 3 being charge sheet and seizure list in connection with Budge Budge Police Station Case No. 37 dated 03-02-2011. It is apparent from the said Exhibits that the driving license of B. Roy the driver of the offending vehicle bearing No. WB115018353 valid upto 12-03-2011. It is evident that the driver was holding valid license at the time of accident.

Learned Advocate further submits that the D.W.-1 in her evidence and affidavit mentioned the exhibit 2 and 3 being charge sheet seizure list, and further claimed that she verified the same from the concerned RTO and furnished the particulars of said driving license. In her cross examination D.W.-1 contended that the particular of the driving license which are contrary to the particulars available at the time of charge sheet and seizure list. Moreover the seized driving license has not been called for in course of Trial. Nor investigating officer of the police case was called upon for adducing evidence in order to ascertain the authenticity of the seized Driving License.

Learned Advocate also submits that in evidence of P.W.-3 it has been clearly admitted that the old driving license number has been converted to the new digital number. The license was first issued on 10-03-1988 and same was renewed from time to time. The said license in the nature of non-transport license is valid upto 09-11-2016 and valid upto 2014 as transport license. It is submitted by the Learned Advocate that the Learned Trial Judge erroneously held that there