Oriental Insurance Co. Ltd. vs Mohd. Kashif & Ors.
2011 Latest Caselaw 758 Del

                                     UNREPORTED
*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     MAC. APP. 9/2010


ORIENTAL INSURANCE CO. LTD.         ..... Appellant
                 Through: Mr. A.K. Soni, Advocate

             versus


MOHD. KASHIF & ORS.                             ..... Respondents
                  Through:            None


%                          Date of Decision :   February 08, 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.

By way of this appeal, the appellant - Insurance Company

seeks to assail the judgment and award dated 05.10.2009 passed by

the learned Motor Accident Claims Tribunal, New Delhi on the sole

ground that the Tribunal erred in not giving recovery rights to the

appellant against the respondent No.2 - insured for the awarded

amount.

2. The facts relevant for the disposal of the present appeal are that

on 25.11.2002 a claim petition was filed by the respondent No.1,

Mohd. Kashif claiming compensation under the Motor Vehicles Act,

1988 for the injury sustained by him in a road accident, caused by a

truck bearing No.DL-1G-3875 owned by the respondent No.2 and

driven by the respondent No.3 herein. The respondents No.2 and 3

did not choose to contest the petition and were proceeded ex parte by

the Claims Tribunal in default of appearance during the proceedings.

The appellant - Insurance Company while admitting the factum of

insurance denied its liability to pay compensation to the victim, viz.,

the respondent No.1 on the ground that the respondent No.2 (insured)

had breached the policy conditions, inasmuch as the offending truck

was being driven by the respondent No.3 who was holding a fake

licence.

3. Before the Motor Accident Claims Tribunal, the appellant -

Insurance Company examined Shri Rohtash, Clerk from the

Transport Authority, Sonepat, as R1W1, from whom the appellant

summoned the record relating to licence No.52516 purportedly issued

by the Regional Transport Authority, Sonepat to the respondent No.3.

R1W1, however, deposed that the driving licence No.52516, the

record of which had been summoned, was not issued from the office

of the RTO Sonepat. He further deposed that licences with such a

large number of digits (five in this case) were not issued from the

RTO Sonepat and went on to state that the licence in question did not

bear even the authorized seal of the RTO Sonepat and was a fake one.

Needless to state, this witness was not cross-examined at all.

4. Apart from examining R1W1, the appellant - Insurance

Company examined R1W2 Shri Vikram Singh, the authorized officer

of the Oriental Insurance Company, who proved on record the

insurance policy No.215402/2002/64, which, he stated, was valid

from 16.08.2001 to 15.08.2002 as Ex.R1W2/1. He further deposed

that as per the verification report of one M.S. Bhist dated 03.01.2005,

the licence of the respondent No.3 was found to be a fake one. The

original report along with the fee receipt of the Transport Authority

were proved on record by this witness as Ex.R1W2/2 and

Ex.R1W2/3.

5. The sole submission of Mr. A.K. Soni, the learned counsel for

the appellant - Insurance Company is that in view of the unrebutted

evidence on record of R1W1 and R1W2 that the driving licence was a

fake one and had resulted in the breach of the insurance policy

conditions, the respondent No.2 - insured ought to have been made

liable to pay the award amount and in the alternative, the right of

recovery of the award amount should have been given to the appellant

- Insurance Company by the learned Tribunal. The learned counsel

also pointed out that the learned Tribunal erred in rejecting the

evidence of R1W1 and R1W2 on the sole ground that there was no

report from the office of the Regional Transport Authority to certify

this fact and, therefore, the Insurance Company had failed to

discharge the burden of showing that the licence held by the

respondent No.3 - driver was a fake one.

6. At this juncture, it deserves to be mentioned that though the

insured (the respondent No.2 herein) was duly served with the notice

to show cause in the appeal, he did not choose to appear and contest

the proceedings. As noted above, he remained ex parte before the

learned Tribunal as well. Likewise, the respondent No.3 - driver was

also proceeded ex parte by the Claims Tribunal. Thus, the unrebutted

evidence on record is that the driving licence in the instant case was a

fake one. A witness from the Regional Transport Authority was duly

summoned and examined by the appellant - Insurance Company to

prove this fact, which also stood proved through the report of the

Investigator of the Insurance Company, as testified by the authorized

officer of the Insurance Company, namely, R1W2.

7. There is thus no manner of doubt that the insured had breached

the policy conditions by handing over the offending truck to be driven

by a person with a fake licence. It was for the respondent No.2 -

Insured to have stepped into the witness box to depose that he was

not aware of the fact that the driving licence held by the respondent

No.3 was a fake one. The respondent No.2 not having chosen to

examine himself in order to bring on record the fact that he was

laboring under a bona fide impression that he had engaged a duly

licenced driver to drive the offending truck, it must be presumed that

he was aware of the fact that the driving licence held by the

respondent No.3 was a fake one.

8. Consequently, the appeal succeeds and the appellant -

Insurance Company is held entitled to recover the award amount from

the respondent No.2, which, it is stated, has already been paid by the

appellant to the claimants.

9. MAC. APP. No.9/2010 stands disposed of accordingly.

REVA KHETRAPAL (JUDGE) February 08, 2011 km