Devi Prasad Singh and V.D. Chaturvedi, JJ. - (1.) HEARD Mr. Rajesh Nath, learned counsel for the appellant, Mr. Rajendra Jaiswal, learned counsel for the respondents and perused the record.
(2.) IN brief, on 23.5.2001 at about 8.30 p.m., deceased Laxmi Narain Agarwal was going towards his house on a bike along with his brother and when he reached in front of Bara Gaon Police Chowki, Police Station Kotwali Sadar, District Gonda, a truck No. UAO 9548 driven rashly and negligently hit the motor cycle resulting serious injuries to Laxmi Narain Agarwal who succumbed to his injuries before arriving to the hospital. At the time of death, Laxmi Narain Agarwal was aged about 40 years. Deceased Laxmi Narain Agarwal was survived by his wife Santosh Kumar, son Mudit Agarwal (aged about 19 years), daughter Manali Agarwal (aged about 16 years) and Shubha Agarwal (aged about 14 years). Laxmi Narain Agarwal (deceased) was engaged in the business of aarhtia of foodgrains and his monthly income was Rs. 8,500. F.I.R. was lodged at the Police Station Kotwali Sadar, District Gonda at Case Crime No. 237 of 2001, under sections 279, 304-A and 427, INdian Penal Code. The truck was owned and possessed by Vijay Kumar and on the date of incident, it was insured with the appellant. While filing written statements, the appellant has denied the involvement of the truck in accident and disowned its lia- bility to pay the compensation. It was also alleged that the truck driver was not having licence. Before the learned Tribunal, Santosh Agarwal has been examined as PW 1 and Jagdish Prasad Agarwal as PW 2. As documentary evidence, F.I.R. as Exh. C6 and death certificate, post-mortem report, driving licence and income tax return for the assessment years 2000-01 and 2001-02 were filed as Exhs. C2 to C8 before the Tribunal.
(3.) THE appellant insurance company itself has filed list Exh. C36 and true copy of insurance policy as Exh. C37 showing that the truck No. UAO 9548 owned by Vijay Kumar was insured by New India Assurance Co. Ltd, and the insurance was valid from 2.8.2000 to 1.8.2001. THE accident took place on 23.5.2001. Accordingly, the Tribunal has recorded a finding that on the date of accident, the vehicle in question was duly insured with the appellant. On behalf of the claimants, it was pleaded that the driver of the truck was having a valid licence at the time Of accident. No evidence was led by the appellant to establish that the driver was not having driving licence at the time of accident. The Claims Tribunal has relied upon a decision reported in Narcinva V. Kamai V. Alfredo Antonio D. Martins, 1985 ACJ 397 (SC) and held that in view of the law settled by the Hon'ble Supreme Court onus to prove the violation of terms and conditions given in insurance policy with regard to driving licence lies upon the shoulders of the insurance company. In absence of any material, the Tribunal recorded a finding that the driver was having the driving licence at the time of accident.;