Delhi High Court
Oriental Insurance Co.Ltd. vs Nisha Kohli & Others on 11 August, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 11.08.2011
+ MAC APPEAL No.201/2010 & CM No. 5807/2010
ORIENTAL INSURANCE CO. LTD.. ...........Appellant
Through: Ms. Manjusha Wadhwa and
Ms. Anjana Goswami,
Advocate.
Versus
NISHA KOHLI & OTHERS ..........Respondents
Through: Mr. Ashok Popli, Advocate for
respondent No. 1.
AND
MAC APPEAL No.202/2010 & CM No. 5835/2010
ORIENTAL INSURANCE CO. LTD.. ...........Appellant
Through: Ms. Manjusha Wadhwa and
Ms. Anjana Goswami,
Advocate.
Versus
K.K. KOHLI & OTHERS ..........Respondents
Through: Mr. Ashok Popli, Advocate for
respondent No. 1.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
MAC APPEAL Nos.201-202/2010 Page 1 of 7
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 These are two appeals which have been filed by the
Insurance Company impugning Award dated 29.01.2010 vide
which compensation in the sum of Rs.77,759/- along with interest
had been directed to be paid to the two petitioners K.K. Kohli and
Nisha Kohli both of whom had suffered injuries in an accident
which had occurred on 12.05.2005. K.K. Kohli and Nisha Kohli
were the victims in this accident; K.K. Kohli was driving a two
wheeler scooter on which his wife was the pillion rider; a Santro
car collided with their scooter as a result of which the parties
sustained grievous injuries.
2 The Tribunal had passed the Award against the insurance
company. Recovery rights had not been granted against the
owner/driver of the vehicle which is the grievance now in the
present appeals. The contention raised by the appellant is that the
driver of the vehicle had no valid driving license; in the absence of
an effective driving license, the Insurance Company in fact could
not be burdened with any liability; this is first submission; in the
alternate even if liability is foisted upon the Insurance Company,
the Insurance Company should have been granted recovery rights
against the owner/driver.
3 Record shows that the driver of the vehicle namely Alok
Kumar had expired in the course of the proceedings and the
learned Tribunal has recorded this fact on 10.05.2007; on
14.05.2008 since Alok Kumar (driver) had expired and there being
no dispute to his identity, permission had been granted to the
appellants not to substitute the legal representatives of
respondent No. 1/driver. Contention of learned counsel for the
appellant is that in these circumstances when the legal heirs of
driver Alok Kumar were not known and Alok Kumar having died,
notice under Order 12 Rule 8 of the Code could have only been
issued to the owner and not to the driver and the judgments relied
upon by the learned Tribunal reported in Oriental Insurance
Company Ltd. Vs. Sonia II (2009) ACC 44 and (2008) 4 ACC 136
National Insurance Co. Ltd. Vs. Nirabjit Kaur & others are both
distinct; it is pointed out that in both these cases, the owner of the
offending vehicle had come into the witness box and stated that
the driver did have a valid and effective driving license.
Contention being that the impugned Award suffers from an
infirmity and is liable to be modified and recovery rights be
granted to the appellant.
4 The owner has been arrayed as respondent No. 3 namely
Smt. Rameshwari Devi. Inspite of service, she has chosen not to
appear before this Court.
5 Submissions made by learned counsel for the appellant have
little force. Record shows that the death of driver Alok Kumar had
been recorded as a fact on 10.05.2007, two applications had
thereafter been filed by the claimants; in the first application the
name of the driver which had inadvertently been mentioned as
Ashok Kumar has been sought to be corrected as Alok Kumar
which had been allowed. The second application is relevant. Vide
this application, the contention of the petitioners/claimants was
that since the identity of the driver Alok Kumar was not disputed
and he having died' claimants be allowed not to substitute the
legal representatives of the driver; the order dated 14.05.2007
specifically records that the counsel for the Insurance Company
did not wish to file any reply to the said application; he had no
objection to the said application; he had therefore by his consent
permitted the legal representatives of the deceased driver not to
be brought on record. It does not now lie in the mouth of the
Insurance Company to state that they had no details about the
legal representatives of the driver and in these circumstances
notice under Order 12 Rule 8 of the Code could not have been
issued to the driver.
6 Record further shows that the notice under Order 12 Rule 8
of the Code is dated 25.08.2009; it has admittedly been issued
only to the owner; it could not have been issued to the driver or to
his legal representatives as the names of the legal representative
of the driver had not been brought on record in terms of order
dated 14.05.2007. Insurance Company as noted supra had not
opposed this prayer; if the defence of the Insurance Company was
that the driver did not have a valid driving license, it was
incumbent upon the Insurance Company to have ensured that the
legal representatives of the driver are brought on record but it
chose not to do so. R3W-1 has appeared as a witness on behalf of
the Insurance Company; he had proved the notice under Order 12
Rule 8 of the Code which is dated 25.08.2009. This notice had
admittedly been sent to the owner of the vehicle and not to the
driver.
7 In the judgments of Nirabjit Kaur and Sonia referred to
Supra, a Bench of this Court had observed that where the notice
under Order 12 Rule 8 of the Code had been served by the
Insurance Company only upon the owner and not upon the driver,
the Insurance Company could not be absolved of its liability as
presumption is that the driver would be having the driving license
in his possession and not the owner; the Insurance Company not
having resorted to this procedure and the plea now set up that the
notice under Order 12 Rule 8 of the Code could not have been
issued for want of particulars of the legal representatives of the
driver, is not a valid defence as in the proceedings before the
Tribunal the Insurance Company had not disputed the prayer
made by the petitioners wherein they had sought exclusion for
brining on record the legal representatives of the driver. At the
cost of repetition, if the defence of the Insurance Company was
that the driver id not have an effective driving license, it should
not have allowed the application of the petitioners seeking
exclusion of the legal heirs of the driver to be brought on record;
the Insurance Company not having opposed this application, they
cannot now set up a plea that it was because of the absence of the
details of the legal representatives of the driver that notice under
Order 12 Rule 8 of the Code could not be served upon them.
Burden of proof in terms of Section 106 of the Evidence Act was
upon the appellant; it has failed to discharge this burden.
8 In (2004) ACC 1 (SC) National Insurance Co. Ltd. Vs.
Swaran Singh & others, the Apex Court has observed that a mere
submission by the Insurance Company that the driving license of
the driver was fake and invalid is not by itself sufficient to absolve
the Insurance Company from its liability. In this case the
Insurance Company itself was a party in permitting the Tribunal
to exclude the names of the legal representatives of the driver on
his death; it cannot now claim a benefit that service of notice
under Order 12 Rule 8 of the Code could not be given to the driver
as it did not have knowledge about the names of the legal
representatives of the said person. In these circumstances,
recovery rights cannot be granted in favour of the appellant.
Appeals have no merit.
9 Dismissed.
INDERMEET KAUR, J.
AUGUST 11, 2011
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