Delhi High Court
Oriental Insurance Co. Ltd. vs Sunil Sharma & Ors. on 2 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th November, 2011
Pronounced on: 2nd December, 2011
+ MAC APP. 133/2007
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Ms. Neerja Sachdeva, Adv.
Versus
SUNIL SHARMA & ORS. ..... Respondents
Through: Mr. Sumant Bhardwaj, Adv.
None for Claimants.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Oriental Insurance Co. Ltd. impugns the award
dated 18.09.2006 whereby a claim petition under Section 166 of
the Motor Vehicles Act, 1988 filed by the Respondent No.1 was
allowed and he was granted compensation totaling ` 1,45,708/-
in respect of the injuries including permanent disability to the
extent of 20% in respect of the left leg.
2. The Appellant's grievance is that although it led evidence to
show that the driver did not possess any valid and effective
driving licence to drive the HMV, the impugned award is
completely silent about the Appellant's plea.
3. The learned counsel for the Appellant took me through the
cross-examination of R2W1 Chaman Lal owner of Truck
No.DL-1HG-1850, who admitted that he was not in possession
of the licence of the driver on 09.12.2005. The learned counsel
for the Appellant also referred to the order dated 19.07.2011
passed by this Court whereby Respondent No.3 was directed to
file an affidavit enclosing photocopy of the driving licence held
by Respondent No.2 the driver at the relevant time.
4. On the other hand it is urged by learned counsel for Respondent
No.3 that this accident took place on 28.06.1997 and the claim
petition was filed on 02.01.2003 i.e. more than 5½ years after
the accident. The driver had a valid driving licence on
28.06.1997 i.e. at the time of accident, which was duly verified
by him (the owner).
5. Though, the Appellant Insurance Co. sought to prove a notice
under Order 12 Rule 8 CPC purported to have been served upon
Respondent No.3. The same was, however, not proved as the
envelope Ex. R2W1/R3, though admitted by R2W1 the owner
as having his correct address, it was not proved that he was ever
put to notice to produce the driving licence of the driver. No
evidence of tendering this notice was produced by the
Appellant. The claim petition was been filed after 5½ years of
the accident, it could not be expected of Respondent No.3 to
have retained the driving licence of the driver (Respondent
No.2). Respondent No.3 cannot be said to be guilty of the
breach of the terms of the policy so as to give a defence to the
Appellant under Section 149(ii)(b) of the Motor Vehicles Act to
avoid the liability. Although, the Tribunal did not deal with this
issue specifically yet the Tribunal's finding making the
Appellant liable to pay the compensation cannot be faulted.
6. The appeal is devoid of any merit. The same is accordingly
dismissed.
(G.P. MITTAL)
JUDGE
DECEMBER 02, 2011
hs
