National Insurance Co.Ltd vs Jyoti Mehta & Ors.
2011 Latest Caselaw 4005 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 17.08.2011


+ MAC No. 221/2010 & CM No. 6497/2010 (stay)

NATIONAL INSURANCE CO. LTD.      ...........Appellant
                 Through: Mr. P. Mahapatra and
                            Ms. Rajdipa, Advocates.

                   Versus


JYOTI MEHTA & ORS.                        ..........Respondents
                         Through:    None.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     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. The order impugned before this court is the Award dated

11.01.2010 vide which compensation in the sum of Rs.6,73,680/-

had been awarded in favour of the claimant. The contention of the

Insurance Company before the Tribunal was that the driving

licence of the driver was fake. This contention had also been

noted while passing the Award; Insurance Company had prayed

for a recovery certificate; this request had been rejected as the

court had noted that no such evidence had been brought forthwith

by the Insurance Company to substantiate this submission that the

driving licence was fake. The only witness produced by the

Insurance Company was the Clerk of the Insurance Company who

was examined as R3W1; the Tribunal had noted that no witness

had come from the Transport Authority to substantiate this

submission.

2. Appeal has been filed primarily on this ground; contention of

the Insurance Company being that the driving licence was fake;

recovery rights should have been granted in favour of the

Insurance Company. Learned counsel for the appellant has drawn

attention of this court to a document dated 10.08.2009 which was

a reply received to an RTI wherein it had been informed that the

driving licence bearing No. W.B.-01-563489 in the name of Ram

Babu had not been issued from the office of Public Vehicles

Department, Kolkata.

3. Evidence adduced by the Insurance Company comprised of

one witness only. R3W1 was the Clerk of the Insurance Company;

he had proved the notice under Order 12 Rule 8 of the Code of

Civil Procedure (hereinafter referred to as 'the Code') having been

served upon the driver who had refused to accept the said notice;

his deposition was to the effect that the licence was not produced

by the driver namely Ram Babu.

4. Record shows that the issues had been framed on

28.08.2006 when the matter was listed for the evidence of the

appellant. After the examination of the two witnesses of the

appellant on 12.12.2007, the petitioner evidence stood closed and

the matter was fixed for respondent evidence. On 18.03.2008 i.e.

the next date, no witness had appeared on behalf of the

respondent No. 3; on the following date i.e. 10.07.2008 the sole

witness of respondent No. 3 (R3W1 as noted supra) had been

examined and discharged. It had been recorded that it would be

exclusively the responsibility of the Insurance Company to

procure the attendance of the remaining witnesses. Thereafter the

matter was listed on 10.11.2008, 09.03.2009, when again no

witness was present on behalf of the respondent; on 09.03.2009 it

had been noted that respondent had moved an application for

summoning the witnesses but the said application had been filed

belatedly; in the interest of justice, one more last and final

opportunity had been granted to respondent for summoning the

remaining respondent witnesses subject to payment of cost of Rs.

500/- as cost; on the subsequent date i.e. 24.07.2009 again no

witness was present. The request of the respondent to adjourn the

matter for another date in order to produce the remaining

respondent witnesses was thus rejected. Matter had been fixed for

final arguments pursuant to which Award then had been

pronounced.

5. Record thus substantiates that time and again several

opportunities had been granted to the respondent to lead

evidence but for no cogent reason evidence was not led; court had

also specifically stipulated that it would be the exclusive and sole

responsibility of the respondent to produce his witnesses on his

own; there was no plausible explanation for non-production of the

said witnesses on the various dates noted supra; several

opportunities having been granted to the respondent, respondent

evidence was rightly closed on 24.07.2009; it does not now lie in

the mouth of the respondent to state that respondent should be

given another opportunity to adduce his witnesses to substantiate

this submission that the driving licence of the driver Ram Babu

was a fake licence. This has been the defence of the Insurance

Company right from the inspection and this had been noted by the

Tribunal as far back as on 13.01.2004 when the written statement

had been filed by the Insurance Company. Enough opportunity

and time having already been granted to the respondent, the

Award on this ground suffers from no infirmity.

6. In these circumstances, recovery rights were rightly not

granted in favour of the Insurance Company as a bald defence

that the driving licence is fake without it having been

substantiated by cogent evidence could not be a valid defence of

the Insurance Company to avoid its liability. Learned counsel for

the appellant has confined his argument only on this ground; he is

not urging any other ground.

7. Appeal has no merit; it is dismissed.

INDERMEET KAUR, J.

AUGUST 17, 2011 rb