The New India Assurance Co. Ltd. vs Raj Kumar & Ors.
2011 Latest Caselaw 3409 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                    MAC. APP. 427/2007


THE NEW INDIA ASSURANCE CO. LTD.      ..... Appellant
                  Through: Mr. Mohan Babu Aggarwal,
                           Advocate

                     versus

RAJ KUMAR & ORS.                                    ..... Respondents
                              Through:   None


%                             Date of Decision : July 18, 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. By way of the present appeal under Section 173 of the Motor

Vehicles Act, 1988, the appellant, an Insurance Company, seeks to

impugn the judgment and order dated 07.02.2007 passed by the

Motor Accidents Claims Tribunal, Delhi in claim petition

No.181/2003.

2. The challenge in the appeal is within a very narrow compass.

The appeal against the respondents No.1 to 5, who were the claimants

in the claim petition, was dismissed at the initial stage and the appeal

was admitted only on the limited issue as to whether the appellant is

entitled to recovery rights against the respondents No.6 and 7, viz.,

the driver and the owner of the offending vehicle, being a TSR

bearing No.DL-1R-F-4018, the rash and negligent driving of which

had resulted in the death of Smt. Veero Devi, wife of late Shri Sadhu

Ram while crossing the old Rohtak Road in front of the Main Market,

Kishan Ganj, New Delhi.

3. The respondents No.6 and 7 despite service by publication of

summons did not choose to appear to contest the appeal and were

accordingly proceeded ex parte by order of this Court dated March

04, 2011.

4. Mr. Mohan Babu Aggarwal, the learned counsel for the

appellant-Insurance Company was heard and the record of the Claims

Tribunal was requisitioned and scrutinized. None appeared on behalf

of the ex parte respondents.

5. The sole contention of Mr. Mohan Babu Aggarwal, the learned

counsel for the appellant is that the award passed by the Claims

Tribunal is liable to be set aside in view of the fact that the driving

licence of the respondent No.6, who was driving the offending

vehicle at the time of the accident, was only for LMV (Non-

Transport) and not for commercial plying.

6. In the above context, Mr. Mohan Babu Aggarwal relied upon

the testimony of R3W1 Shri B.P. Singh, A.O., New India Assurance

Co. Ltd., which is being reproduced hereunder in its entirety:

"R3W1 Statement of Sh. B.P. Singh A.O. New India Assurance Co. Ltd. Tolstoy Marg, New Delhi

ON SA

We served a notice under order XII rule 8 CPC to the driver and the owner of the vehicle for producing original D/L and original policy through our advocate. Carbon copy of notice is Ex. R3W1/1. The said notice was issued by registered AD and UPC. The postal receipts are Ex. R3W1/2 and Ex. R3W1/3. The UPC is Ex. R3W1/4. I have brought the attested

computerised copy of policy (running into three pages) in respect of vehicle bearing no. DL1RF-4018 and the same is Ex. R3W1/5. The original investigators report is Ex. R3W1/6. The investigator supplied us the copy of D/L of the driver which is marked „A‟. We got the license verified and the original verification reported issued by licensing authority Ghaziabad is Ex. R3W1/7.

Xx by Sh. Umesh Rai Adv. for claimants

We had not issued any instructions to investigator Subhash Chander Srivastava to appear before the court."

7. On the basis of the aforesaid testimony of an official of the

Insurance Company, the counsel for the appellant contended that it

stood established on record that the driving licence of the driver was

not a valid and effective driving licence, in that the driver was driving

a vehicle other than the one he was authorized to drive. I find no

merit in the aforesaid submission of the learned counsel for the

appellant for the reason that the Investigator, who is stated to be the

author of the report Ex.R3W1/6, was not examined by the appellant-

Insurance Company to corroborate the fact that the aforesaid report

was given by him nor any official from the concerned Transport

Authority was summoned with the record to prove that the driving

licence of the respondent No.6 was not a valid and effective one on

the date of the accident. Significantly also, R3W1 B.P. Singh, who is

the only witness examined by the appellant, unequivocally stated that

the Investigator supplied the copy of the driving licence of the driver,

which was got verified from the Licensing Authority, Ghaziabad.

From where the Investigator procured the copy of the driving licence

of the driver is not clear from the record. It also does not stand

established on record that notice under Order XII Rule 8 of the Code

of Civil Procedure was in fact served upon the respondents No.6

and 7. There is, thus, not an iota of evidence on the record to

substantiate the defence of the Insurance Company that there was the

breach of policy conditions on the part of the insured.

8. In view of the aforesaid, there is no merit in the present appeal.

The same is accordingly dismissed.

REVA KHETRAPAL (JUDGE) July 18, 2011 km