New India Assurance Company Ltd. vs Lalita Yadav & Ors.
2011 Latest Caselaw 3730 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+              FAO 692/2003 and CM No.1431/2003

NEW INDIA ASSURANCE COMPANY LTD.           ..... Appellant
                 Through: Mr. Pankaj Seth, Advocate

                    versus

LALITA YADAV & ORS.                                ..... Respondents
                 Through:               None

%                            Date of Decision : August 04, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                             J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

1. This appeal under Section 173 of the Motor Vehicles Act, 1988

has been preferred against the judgment and award dated 02.08.2003

passed by the Motor Accidents Claims Tribunal, Delhi in Suit

No.529/97.

2. The facts relevant for the decision of the appeal are that the

legal heirs of the deceased Shri Kant Yadav, who died in a motor

accident, filed a Claim Petition under Section 166 of the Motor

Vehicles Act, 1988 against the driver, the owner and the insurer of the

offending vehicle, being TSR No.DAR-302, stating therein that on

02.06.1997 when the deceased along with his son was going on a

bicycle, the said vehicle No.DAR-302, being driven rashly and

negligently by its driver (the respondent No.5 herein) dashed against

the said cycle causing fatal injuries to the deceased. The learned

Tribunal by its judgment dated 02.08.2003 passed an award in the

sum of ` 4,89,600/- (including the interim award) with interest at the

rate of 9% per annum from the date of filing of the petition till

realisation in favour of the respondents No.1 to 4 and against the

respondent No.5-driver, the respondent No.6-owner and the

appellant-Insurance Company, and directed the appellant as the

insurer of the offending vehicle to pay the entire amount of

compensation to the respondents No.1 to 4. The learned Tribunal,

however, did not accept the plea of the appellant-Insurance Company

that the driver was not holding a valid and effective driving licence

and held that the appellant-Insurance Company was not entitled to

recover the award amount from the insured.

3. Aggrieved by the aforesaid judgment and award passed by the

learned Tribunal, the present appeal has been preferred by the

appellant-Insurance Company challenging the same.

4. The sole submission of Mr. Pankaj Seth, the learned counsel

for the appellant, is that the driver of the offending vehicle did not

hold a valid and effective driving licence at the time of the accident,

and consequently the owner would be deemed to have committed a

breach of the conditions of the policy of insurance, and the appellant,

even if held liable to pay compensation, is entitled to recover the

same from the insured. It is submitted that the Tribunal has wrongly

held that the appellant has failed to prove that the driver at the time of

the accident did not hold a valid and effective driving licence.

5. None appeared on behalf of the respondents No.5 and 6, though

respondents No.5 and 6 were duly served by publication.

Accordingly, the learned counsel for the appellant-Insurance

Company was heard and the records scrutinized.

6. A look at the records shows that the only witness examined by

the appellant in respect of the driving licence of the respondent No.5,

the driver of the offending TSR was R3W1 Ashok Saluja, an official

from the appellant-Insurance Company, who proved the copy of the

insurance policy in respect of vehicle No.DAR-302 issued in the

name of the respondent No.6 for the period 04.01.1997 to 03.01.1998

as Ex.R3W1/1 and stated that under the terms and conditions of the

insurance policy, the vehicle could be driven by a duly licenced

person. The witness further deposed that on verification of the

criminal records, their company had found that the respondent No.5

Ram Bilas had also been charge-sheeted under Section 3 read with

Section 181 of the Motor Vehicles Act, 1988 for not possessing a

driving licence at the time of the accident. R3W1 further deposed

that the appellant-Insurance Company had sent a notice through an

Advocate to the driver and the insured to produce the original driving

licence and the insurance policy before the Claims Tribunal, the

postal receipts whereof were exhibited as Ex.R3W1/2 and

Ex.R3W1/3 and the UPC was Ex.R3W1/4. He stated that the notice

issued to the owner had been received back unserved and the returned

envelope was Ex.R3W1/5. Copy of the notice was Ex.R3W1/6. In

his cross-examination, R3W1 unequivocally admitted that he did not

know whether the notice under Order XII Rule 8 CPC Ex.R3W1/6

had been served upon the driver.

7. From the aforesaid evidence on record, the learned Tribunal

concluded, and I think rightly so, that the appellant-Insurance

Company had failed to prove that the notice under Order XII Rule 8

Code of Civil Procedure for production of the driving licence of the

respondent No.5-driver had been served upon the respondent No.5-

driver and the respondent No.6-owner of the offending vehicle

No.DAR-302. The only witness of the appellant was R3W1, who

stated that the notice issued to the respondent No.6-owner had been

received back unserved through returned envelope Ex.R3W1/5. As

regards the driver, the witness stated that he did not know whether the

notice had been served upon the driver or not. The learned Tribunal

also noted that the appellant-Insurance Company deliberately chose

not to serve the aforesaid notice on the owner at the address

mentioned in the insurance policy as 6/91, New Moti Nagar, New

Delhi, but instead issued notice to him at 5-C-4, Railway Colony,

East Punjabi Bagh, Delhi. When the notice issued at the latter

address was received back unserved, no efforts were made to serve a

fresh notice at the address mentioned in the insurance policy. Hence,

the Tribunal held that the appellant was not entitled to recover the

awarded amount from the owner.

8. There does not appear to me any plausible reason to disagree

with the aforesaid findings of the learned Tribunal. There is no

manner of doubt that notice under Order XII Rule 8 CPC was not

served by the appellant upon the driver and the owner of the

offending vehicle. The appellant also did not choose to summon the

respondent No.5-driver to examine him as a witness to prove that he

in fact did not hold a valid and effective driving licence on the date of

the accident. Indisputably, the driver was charge-sheeted under

Section 3/181 of the Motor Vehicles Act, 1988 for not possessing a

driving licence, however, the Tribunal has rightly held that this does

not necessarily show that he was not holding a valid and effective

driving licence at all at the time of the accident. It may be that he was

not in possession of the driving licence at the time of the accident and

he failed to produce the same before the police. The onus to prove

that the driver was not holding a valid and effective driving licence at

the time of the accident was on the appellant, which it failed to

discharge. A specific query was put by me to the learned counsel for

the appellant as to whether the driver had been indicted for not

possessing the driving licence under Section 3/181 of the Motor

Vehicles Act, 1988, but no reply to the said query could be given by

the learned counsel.

9. In view of the aforesaid, the inevitable conclusion is that it

must be held that the appellant has failed to prove that the driver of

the offending vehicle was not holding a valid and effective driving

licence at the time of the accident and that the insured was aware of

this fact. Accordingly, the appeal fails and is dismissed. CM

No.1431/2003 also stands disposed of.

10. There will be no order as to costs.

11. The records of the learned Tribunal be sent back forthwith.

REVA KHETRAPAL (JUDGE) August 04, 2011 km