IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI First Appeal No.148 of 2006 The New India Assurance Company Ltd., Velho Building, 3rd floor, Panaji-Goa. ….. Appellant V e r s u s 1. Shri Anant Rama Sawant, S/o Shri Rama Babu Sawant, R/o Valley Height Housing Coop. Society, Near Vidya Mandir, Airport Road, Chicalim, Vasco-da-Gama, Goa. 2. Mr. Uday Krishna Narvekar, Shiroda Vaddi, Mulgaon, Bicholim, Goa. 3. Shri Ekbal S. Kulli, r/o Muzawar Wado, Sanquelim, Goa. 4. Shri Joseph Anthony Gonsalves, r/o Gokulwadi, Sanquelim, Goa. 5. The United India Insurance Co. Ltd., Bicholim-Goa. ….. Respondents Mr. E. Afonso, Advocate for the Appellant. Mr. R. Naik, Advocate for the Respondents. - 2 - Coram: R.P. Sondurbaldota, J. Reserved on : 9th September, 2011. Pronounced on : 16th September,2011. JUDGMENT : This appeal is preferred against the judgment and award dated 30/12/2005 of the Motor Accident Claims Tribunal, North, Panaji-Goa awarding compensation to respondent no.1 for the injuries sustained by him in an accident involving two vehicles. Respondent no.2 is the owner of one of the vehicle i.e. Vespa scooter bearing registration no.GA-01-B-4856. Respondent nos.3 and 4 are the driver and owner, respectively of the other vehicle i.e. Rajdoot motorcycle bearing registration no.GA-01-B- 4861. The appellant is the insurer of the scooter and respondent no.5, the insurer of the motorcycle. 2. On the date and time of the accident respondent no.2 offered lift to respondent no.1 from his bank i.e. Canara bank, Assonora branch to Mapusa. When the vehicle of respondent no.2 was near Tivim football ground, it met with a head-on collusion with the motorcycle coming from the opposite side. According to - 3 - respondent no.1, both the vehicles were trying to overtake another vehicle in the front and were also being driven at a high speed resulting into the accident. He claims to have sustained permanent disability to the extent of 5% on account of the injuries sustained in the accident. The injuries sustained consist of fracture injury to the right femur, left femur and fracture of shaft. The compensation claimed by him in the petition was Rs.5.00 lakhs. The impugned judgment and award partly allows the claim petition awarding compensation of Rs.1,45,000/- to him with interest at the rate of 6% per annum on the entire sum. Respondent no.5 has not challenged this award. 3. The appellant in its written statement contended that it was absolved of its liability to indemnify respondent no.2 on account of breach of specified policy condition namely condition excluding driving by any person who is not duly licensed. In other words, it was contended that respondent no.2, at the relevant time did not hold a valid driving licence. Later due to absence of respondent no.2 the defences on merit which are otherwise - 4 - unavailable to an insurer also became available to the appellant on grant of its application under Section 170 of the Motor Vehicles Act. 4. Mr. Afonso, the learned counsel for the appellant draws my attention to the cross examination of Cw.3, the Police Officer investigating into the incident of accident. In answer to the question put on behalf of the appellant, Cw.3 stated as under: “ The rider of vespa scooter bearing no.GA-01-B-4856 did not possess valid driving licence and offence was registered against him for driving the vehicle without licence and he had paid fine of Rs.450/-.” There is no challenge to this evidence. These statements in cross examination completely establish the contention of the appellant that respondent no.2 at the relevant time was driving the scooter without licence. The learned Presiding Officer of the Tribunal in the impugned judgment has discarded this clear evidence for the reason that Cw.3 had not produced any evidence on record to prove that any challan was issued to respondent no.2 - 5 - for driving the vehicle without a licence or to prove that respondent no.2 had paid the fine for contravening the provision of the Motor Vehicle’s Act. In my opinion, the Presiding Officer ought to have accepted the unchallenged evidence of Cw.3. In the absence of challenge to the statements made in evidence there was no need for corroboration. Further, there is nothing on record to even remotely suggest that the witness is not a truthful witness. Besides, there is reason for the Investigation Officer to depose falsely against respondent no.2. The learned Presiding Officer next observed that respondent no.1 ought to have produced evidence on record to indicate that respondent no.2 was disqualified from holding a driving licence. It was not the case of the appellant that respondent no.1 was disqualified for any reason from holding a driving licence. Therefore, there was no question of the appellant producing any evidence on that count. In the circumstances, the finding of the Tribunal on issue no.4 that the appellant failed to prove the breach of the policy condition cannot be sustained. It is accordingly set aside. The issue is answered in the affirmative and it is held that the appellant is not liable to - 6 - indemnify respondent no.2 on account of breach of the terms and conditions of the insurance policy. 5. Mr. Afonso, learned counsel for the appellant also seeks to argue that the application claiming compensation by respondent no.1 was not maintainable before the Tribunal since respondent no.1 cannot be said to be a third party as contempalted by Section 165 of Motor Vehicles Act. For this submission he seeks support from decision of the Apex Court in the case of United India Insurance Co. Ltd, Shimla Vs. Tilak Singh and Others (2006) 4 Supreme Court Cases 404. Admittedly, this contention was not raised before the Tribunal. Therefore, I am not inclined to consider the same in the present appeal. The appeal however has to succeed for the reasons stated above. 6. Hence, the appeal is allowed. The impugned judgment and order dated 30/12/2005 passed by the Motor Accident Claims Tribunal, North Goa, Panaji in Claim petition no.155 of 1996 is set aside as against the appellant. The claim petition no.155/1996 is dismissed against the appellant. R.P. SONDURBALDOTA, J. Ap/-