CRP/2685/2009 of Bajaj Allianz General Insurance Company Limited Vs D. China Narasiah on 29 December 2009

O R D E R

Heard the counsel for the petitioner - Bajaj Allianz Insurance Company Ltd.,and no representation on behalf of the respondents – claimants.

2. Aggrieved by the order and decree dated 4.5.2009 passed by the court ofMotor Accidents Claims Tribunal, Nizambad in I.A.No.1024/2009 inO.P.No.1126/2007 in dismissing the petition filed by the insurance company underOrder VIII, Rule 9 read with Section 151 C.P.C. to permit them to file additionalcounter, the present revision is filed.

3. The respondents 1 and 2 herein filed MVOP.No.1126/2006 for the death ofone Meesa Gangadhar, who died in the accident that took place on 26.8.2007 atabout 10.30 p.m. near Perkit (V), Armoor Mandal, Nizamabad District, while thedeceased was working as driver on car bearing no.AP -09-EH-T/R-9831. The trialis in progress and when the evidence of P.W.1 is completed, the petitioner – insurerfiled the present petition to receive the additional counter affidavit stating that aftercompletion of the evidence of P.W.1, they came to know through the documentsfiled by P.W.1, that the driver of the vehicle i.e., the deceased, had no valid licenceand hence they sought to take this plea by way of filing additional counter affidavit. Their case is that as the driver was not possessing valid licence, it amounts toviolation of the terms and conditions of the policy and hence they are not liable topay the compensation and the insured who is the owner of the vehicle, havingallowed the person with invalid licence, is liable to pay the compensation. Therefore, they filed the present I.A.

4. The respondents – claimants filed counter affidavit and denied theaverments made by the insurer and sought to dismiss the petition.

5. The court below holding that the application is filed at a belated stage andthat permitting the insurer to file additional affidavit, amounts to improving the case, dismissed the I.A. Hence the present revision.

6. From the material available on record it could be seen that the drivinglicence of the deceased, who was the driver of the crime vehicle, was marked asEx.A-4 in the evidence of P.W.1. The case of the petitioner – insurer is that aftercompletion of the evidence of P.W.1, when their investigator enquired with theRegional Transport Authority, Nizamabad, it came to light that the driving licencewas fake and therefore, they want to take the ground of violation of the terms andconditions of policy, by way of filing additional counter. Though this ground may nothave been specifically taken in the earlier counter affidavit, in view of the allegedrevelations after the completion of the evidence of P.W.1, and in order to docomplete justice to the parties and for better adjudication of the matter, I am of theview, that the court below ought to have allowed the I.A. by permitting the insurancecompany to file additional counter. Hence, having regard to the facts andcircumstances of the case, I pass the order as under:

“The impugned order is set aside and consequently, I.A.No.1024/2009 inO.P.No.126/2007 is allowed and the revision is accordingly allowed.”

7. No order as to costs.

AVS -------------------------------

29—12—2009