- (1.) BOTH these matters are against the same award dated 6.12.2011 passed by the learned Judge, Motor Accidents Claim Tribunal -, Udaipur in MACT Case No. 63/2009 and hence they are decided by this common order.
(2.) THE contention of the Insurance Company is that application under Section 170 of the Motor Vehicles Act was allowed in favour of the Insurance Company. THE contention of the Insurance Company was that the vehicle was driven without valid licence and hence the Insurance Company should be exonerated from the liability. Per contra, the contention of the claimants is that amount of award has already been paid and for contravention of any condition policy the claimants cannot be penalised and cross objections have been filed regarding inadequacy of the compensation and the contention of the claimants is that the deceased at the time of the death was 38 years of age. He was a taxi driver and no future prospects have been considered by the learned Tribunal. Hence the compensation should be enhanced suitably. Heard learned counsel for the parties and perused the impugned award.
(3.) THE contention of the Insurance Company is that the driver was plying the vehicle without any valid licence and issue no.3 has been wrongly decided against the Insurance Company. THE Insurance Company has served notice to the owner to produce the permit but it was not produced before the learned Tribunal and looking to the provisions of Section 106 of the Evidence Act, it was the duty of the owner to prove that he was having a valid permit. It is true that to prove the breach of the condition policy, the onus is on the Insurance Company which has been discharged by stating that no valid permit was with the owner and owner has not discharged his burden by producing the permit. THE negative burden cannot be fastened on the Insurance Company and the reliance has been placed on Bhuwan Singh v. M/s Oriental Insurance Company Ltd. & anr. (JT 2009(3) SC 333) wherein it has been held that originally burden to prove the breach of condition is on the Insurance Company but looking to the provisions of Section 106 of the Evidence Act, it was the duty of the owner to discharge the said burden. Here in the present case, the owner had not discharged the burden by producing the valid permit and hence the learned Tribunal was wrong in deciding issue no.3 against the Insurance company and hence issue no.3 is decided in favour of the Insurance Company. Further more, the contention of the Insurance Company is that company should be exonerated from the liability and the reliance has been placed on National Insurance Company Ltd. v. Challa Bharathamma & ors. ( 2005 R.A.R. 1(SC) 1), but looking to the fact that the award has already been paid and disbursed to the claimants, the only liberty could be given to the Insurance Company to recover the amount of compensation from the owner and the driver.;