ORAL JUDGMENT

Heard learned counsel Sri.R.Jaiprakash appearing for the appellant and learned counsel N.S.Mallikarjuna appearing for the respondents.

2. The short point that arise in this appeal is whether the appellant/Insurance Company is liable to pay the compensation despite the offending vehicle auto rickshaw was driven out side the permit area.

3. The claimant/respondent No.2 herein had filed a claim petition in MVC No.907/2008 seeking compensation on account of the injuries sustained in road traffic accident dated 13.07.2008, wherein he was injured due to the rash and negligent driving of the auto rickshaw bearing registration No. KA-20-A-5969, which was insured by the appellant herein.

4. On issuance of notice, the appellant/Insurance Company appeared before the Tribunal and took up the contention amongst other grounds that the terms and conditions of the policy were violated and therefore, it is not liable to pay the compensation amount.

5. The Tribunal after framing of the appropriate issues and letting in evidence by the parties, awarded a compensation of Rs.1,03,460/- fastening the liability on the Insurance Company despite there being a contention that the auto rickshaw was being plied outside the permit area. The award passed by the Tribunal was challenged by the claimant in MFA.No.7872/2013, wherein the enhancement of compensation was sought and it came to be disposed of by order dated 26.09.2019 by this Court. An enhancement of about Rs.33,000/- was allowed. In the said proceedings, the pendency of the present appeal was not brought to the notice of the Court and as such, the present appeal remained for adjudication.

6. Learned counsel appearing for the appellant would submit that the Tribunal erred in holding that the appellant/Insurance Company is liable to pay compensation since there was evidence to show that the auto rickshaw was being plied outside the permit area. In this regard, he submits that the judgment in the case of AMRIT PAUL SINGH AND ANOTHER V. TATA AIG GENERAL INSURANCE CO. LTD. AND OTHERS1, lays down the appropriate principle.

7. Learned counsel appearing for the respondent/claimant would submit that the Tribunal in para No.9 of the impugned judgment has dealt with the matter and no interference is required. Perusal of para No.9 of the impugned judgment would show that the appellant/Insurance Company had taken up the contention that the permit conditions were violated and even there was evidence let in by the official of the Insurance Company in the form of RW.1 reiterating the said

(2018) 7 SCC 558

contention that the auto rickshaw was being plied outside the permit area and as such, there is violation of conditions of the Insurance Policy.

8. The Tribunal distinguishes the case on hand after referring to a judgment in the case of NEW INDIA ASSURANCE COMPANY LIMITED, BANGALORE V. PAPAIAH AND OTHERS2. The Tribunal also held that there is a defence set up by the claimant that the auto rickshaw was being taken to garage for repairs and therefore, the adequate evidence was not placed before it.

9. It is relevant to note that the contention of the vehicle being plied within the permit area was taken up by the claimant during the cross-examination of RW.1. In order to establish the said fact, positive evidence should have been led by the claimant. No such contention was either taken in the petition or in the evidence of PW.1. It was noted in the cross-examination of RW.1 that such a defence was taken but RW.1 has denied the same.

2006 ACJ 126

Therefore, the fact remains that the vehicle was being plied outside the permit area and the evidence of RW.1 in this regard is not effectively rebutted.

10. The resultant and effect would be that there is infraction of the conditions of the policy and therefore, the ratio laid down by the Apex Court in the case of AMRIT PAUL SINGH (Supra) is applicable, wherein, it is held that in case of infraction of the policy conditions, Insurance Company is liable to satisfy the award