Shiv Devi & Ors vs Manoj Kumar & Ors
2010 Latest Caselaw 4690 Del

                                                         UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         MAC App. No.139/2010


                                      Date of Decision: October 05, 2010


       SHIV DEVI & ORS                              ..... Appellants
                         through Ms. Pooja Goel, Advocate

                   versus


       MANOJ KUMAR & ORS                      ..... Respondents
                     through Mr. S.L.Gupta, Advocate for
                     respondent No.3.

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

The only grievance of the appellants against the impugned

award of the Motor Accident Claims Tribunal dated November 20, 2009

is that the Claims Tribunal has exonerated the Insurance Company

from making payment of the awarded amount on the ground that the

offending vehicle was being driven by the driver without a driving

licence in breach of the insurance policy.

It is submitted by learned counsel for the appellants that the

evidence led by the Insurance Company to prove that the driver did

not have a driving licence, hardly justified that conclusion.

On a perusal of the impugned award, I find that the only

evidence which the Insurance Company had placed on the record was

a notice issued by it to the owner and driver of the offending vehicle

under Order 12 Rule 8 of the Code of Civil Procedure (hereinafter called

the "Code") calling upon them to produce the driving licence. The

Claims Tribunal on the basis of that notice alone and having regard to

the fact that the owner and the driver did not respond to the notice has

held that the driver did not possess a valid and effective driving

licence. The appellants, on the other hand, had produced a driving

licence before the Claims Tribunal, to which the impugned award

makes no reference.

Having heard learned counsels for the parties, I am of the view

that the mere issuance of notice under Order 12 Rule 8 of the Code by

the Insurance Company to the owner and the driver of the offending

vehicle does not go to prove much less conclusively that the driver of

the offending vehicle did not possess a driving licence, more so when a

licence was produced by the claimants. The Insurance Company

should have got the same verified from the concerned Transport

Authority. Not only did it not get the same verified when the case was

pending before the Claims Tribunal, but failed to do so even in appeal

before this Court.

It is not disputed by the Insurance Company that the vehicle in

question was insured with it and it had received the premium from the

owner of the vehicle. In this view of the matter, I direct the Insurance

Company to pay the awarded amount to the claimants in terms of the

award of the Tribunal. However, I do grant to the Insurance Company

the right to recover the same from the owner and the driver of the

offending vehicle. Let the awarded amount be paid within four weeks

from now.

The appeal is disposed of.

REKHA SHARMA, J OCTOBER 05, 2010 ka