Delhi High Court
The New India Assurance Co.Ltd vs Sri Narain & Ors. on 9 May, 2011
Author: Reva Khetrapal
UNREPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC. APP. 870/2006
THE NEW INDIA ASSURANCE CO.LTD ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
SRI NARAIN & ORS. ..... Respondents
Through: None for the respondents No.1
and 3.
Respondent No.2 is ex parte.
% Date of Decision : May 09, 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?
ORDER (ORAL)
: REVA KHETRAPAL, J.
1. This appeal seeks to assail the judgment and award of the
Motor Accidents Claims Tribunal dated 19th August, 2006 awarding a
sum of ` 2,18,682/- to the respondent No.1 on account of the injury
sustained by him in a motor vehicular accident.
2. At the outset, it may be mentioned that notice of the appeal was
issued only to the respondent No.2-owner confined to the aspect of
recovery rights by way of publication. The respondent No.2, however,
did not choose to contest the appeal despite service of summons upon
it and was accordingly proceeded ex-parte by order dated October 19,
2010.
3. The sole submission of Shri Pankaj Seth, the learned counsel
for the appellant is that the Motor Accidents Claims Tribunal erred in
holding the appellant liable to indemnify the owner of the offending
vehicle, namely, the respondent No.2 in respect of the entire award
amount, even after holding that the appellant-Insurance Company had
proved on record that the licence held by the driver of the offending
vehicle (the respondent No.3 in the claim petition) at the time of the
accident was fake. Mr. Seth in this context contends that the Claims
Tribunal misconstrued the law laid down by the Supreme Court in the
case of National Insurance Co. Ltd. vs. Swaran Singh and Ors.
(2004) 3 SCC 297 as well as in the case of United India Insurance
Co. Ltd. vs. Lehru and Ors. 2003 ACJ 611 (SC). In the alternative,
Mr. Seth contended that the Claims Tribunal ought to have granted
liberty in favour of the appellant to recover the amount of award paid
by it to the claimants from the respondent No.2.
4. In the present case, as noted by the Claims Tribunal, the
appellant contested the claim petition by filing a detailed written
statement and admitted that the offending vehicle was insured by it by
a Cover Note No.534621 and Policy No.310801/31/98/02274 valid
from 05.10.1998 to 04.10.1999, but denied its liability to pay any
compensation until it was proved that the driver of the offending
vehicle was having a valid and effective driving licence or was not
otherwise disqualified from holding the same at the time of the
accident. It is also clear from the record that the driving licence of the
driver in the instant case was seized by the police by a seizure memo
and got verified by the appellant.
5. In the above context, R1W1 Shri Rama Nand, Assistant, M/s.
New India Assurance Co., deposed that the certified copy of the
'Fard' of D/L (seizure memo of D/L) and driving licence were
obtained and the same were verified from the Issuing office, Jaipur.
He proved on record the certified copy of the 'Fard' of the D/L as
Ex.R1W1/6 and that of the driving licence as Ex.R1W1/7 and also
proved the reply dated 27.07.2005 as submitted by the Licencing
Officer, Jaipur in response to the notice sent by the Court as
Ex.R1W1/8, submitting therein that no licence was issued in respect
of that series.
6. In the aforesaid circumstances, the Claims Tribunal held that
R1W1 Shri Rama Nand had proved that the licence of the driver of
the offending vehicle was fake. The Claims Tribunal, however, held
that the appellant-Insurance Company had failed to prove breach of
the policy conditions on the part of the insured. It held:
"Admittedly, notice u/o 12 rule 8 CPC Ex.
R1W1/2 does not read that R-2 and R-3 had
been informed that as per the verification of the
D/L of R-3/driver, certified copy of which is Ex.
R1W1/7, as was seized by the police during the
course of investigation, received from
RTO/Licencing Officer, Jaipur, that R-3 was
not having a valid D/L and his licence was fake
and R-3 was not authorised to drive the vehicle
and this fact was within the knowledge of R-2.
No explanation has been placed by R-
1/insurance company as to why R-2 and R-3
were not informed of the result of verification of
the D/L of R-3 as fake as per the report of the
Licencing Officer, Jaipur Ex. R1W1/8. At the
cost of repetition no doubt that R-1 has proved
that licence of R-3 was fake but R-1 has failed
to even show that R-2 had not exercised
reasonable care in the matter of fulfilling the
conditions of the policy regarding use of
offending vehicle by duly licenced driver and
that it was within the knowledge of R-2 that the
D/L of R-3 was fake."
7. I see no reason to disagree with the Claims Tribunal. Had the
Insurance Company summoned the respondent No.2-owner into the
witness box to prove its defence that the respondent No.2 had not
exercised reasonable care in the matter of fulfilling the conditions of
the policy regarding use of the offending vehicle by a duly licenced
driver, and the respondent No.2 had avoided the witness box, in my
view, the position might have been somewhat different. But in this
case, the Insurance Company chose not to do so. As held by the
Supreme Court in the case of Narcinva V. Kamat and Anr. vs.
Alfredo Antonio Doe Martins and Ors. (1985) 3 SCR 951, the
burden to prove breach of the insurance policy was upon the
Insurance Company, for,
"....the burden is squarely on that party which complains
of breach to prove that the breach has been committed by
the other party to the contract. The test in such a
situation would be who would fail if no evidence is
led....".
8. It is not difficult to imagine that had the respondent No.2-
owner known that the driving licence of his driver was a fake one, he
would not have engaged him, for ordinarily no owner would take the
risk of engaging a driver without a driving licence or with a fake
driving licence. It is also not difficult to imagine that the respondent
No.2-owner, who was aware of the fact that the driving licence of his
driver and the insurance policy got issued by him had been seized by
the police, remained under the impression that it was for the insurer to
indemnify him for the compensation which the Claims Tribunal
might hold to be due and payable from him. It was, therefore, for the
Insurance Company to prove that the owner consciously allowed his
vehicle to be driven by a person whose driving licence he knew to be
fake.
9. In view of the aforesaid, it must be held that the Insurance
Company has miserably failed to discharge the burden of proof
placed upon it of proving that there was wilful default on the part of
the respondent No.2-owner of the conditions of the insurance policy.
Accordingly, the findings of the Claims Tribunal in this regard call
for no interference. Consequently, the appeal is dismissed as being
without merit.
REVA KHETRAPAL
(JUDGE)
May 09, 2011
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