Delhi High Court
National Insurance Co. Ltd. vs Paru Devi & Ors. on 17 August, 2012
Author: G.P. Mittal
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th August, 2012
+ MAC. APP. No.457/2008
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. B.K. Mishra, Advocate for
Ms. Neelam Singh, Advocate
Versus
PARU DEVI & ORS. ..... Respondents
Through: Ms. Aeshna Saxena, Advocate for
Mr. Harvinder Singh, Advocate for the
Respondents No.1, 2 & 4(Claimants).
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant National Insurance Co. Ltd. impugns a judgment dated
22.04.2008 passed by the Motor Accident Claims Tribunal(the Claims
Tribunal) whereby a compensation of `3,19,000/- was awarded in favour
of the Respondents No.1 to 5.
2. A Claim Petition under Section 166 of the Motor Vehicles Act, 1988(the
Act) was converted to one under Section 163-A of the Act and the
compensation was awarded as per Schedule II to the Act.
3. The only ground of challenge raised during hearing of Appeal is that the
Appellant Insurance Company successfully proved the breach of the
terms of the policy. In spite of this, no recovery right was granted to the
Appellant.
4. In order to prove breach of the terms of the policy, the Appellant
Insurance Company examined Hukum Singh, Record Clerk and Ashok
Kumar, Clerk RTO as RW1 and R3W2 respectively. The Appellant
proved on record that a notice under Order XII Rule 8 CPC was issued to
the driver and the owner of the vehicle to produce the driving licence held
by the driver at the time of the accident. The driving licence No.553769
which was seized by the Investigating Officer in the criminal case was
stated to have not been issued by the Transport Authority, Karnal. The
Claims Tribunal dealt with the issue of liability in Para 10 of the
impugned judgment, which is extracted hereunder:
"10. In order to establish the defence taken by respondent
No.3, learned counsel for respondent No.3 has examined
Shri Hukum Singh, Record Clerk and Shri Ashok Kumar,
Clerk RTO as RW1 and R3W2 respectively. RW1 exhibited
the carbon copy of the policy of the offending bus as
Ex.RW1/A. He also testified that they got verified the
driving licence No.553769 from the Licensing Authority
Karnal and got the report that the driving licence had not
been issued from the said authority and it was also not
renewed from their authority. After getting the report they
requested their counsel to issue the notice under Order 12
Rule 8 CPC and accordingly the notice Ex.RW1/B was
issued to the driver. The postal receipt is Ex.RW1/C and the
AD card is Ex.RW1/D. The notice Ex.RW1/E was also
issued to the insured, postal receipt is Ex.RW1/F and AD
card is Ex.RW1/G. He further testified that the insured has
violated the terms and conditions of the policy as he gave his
vehicle to a person who had no valid driving licence at the
time of accident. R3W2 produced the driving licence record
of the driving licences issued on 23.9.2000. He testified that
as per their record no licence was issued to Hari Singh son
of Lal Mann on 23.9.2000. As per their record licence
No.241/HTV/2000 was issued on 22.9.2000 and on
25.9.2000 licence No.242/HTV/2000 was issued from their
authority. Licence No.553769 dated 23.9.2000 was not
issued from their authority. He exhibited the copies of
license No.241/HTV/00 and 242/HTV/00 as R3W2/1 and
R3W2/2(original seen and returned). Though RW-1 has
testified that the driving licence No.553769 was got verified
from the Karnal authority and R3W2 has testified that the
aforesaid licence was not issued by the Karnal Authority,
respondent No.3 has failed to prove any link between the
driving licence No. 553769 and the respondent No.1
because it failed to prove the certified copy of driving
licence in question. Vide notice Ex.RW1/B and the notice
Ex.PW1/E, the insurance company had demanded the
driving licence No. 553769 of driver as well as insurance
policy. If the driver and insured had not produced the said
driving licence in the court on receipt of the notice, the
burden of proving the driving licence was on respondent
No.3 by producing and exhibiting its certified copy. As the
respondent No.3 has failed to establish any link between
license No. 553769 and the respondent No.1, to my
considered opinion respondent No.3 has failed to discharge
the burden of proving that the driver was not holding a valid
and effective driving licence at the time of accident. In view
of above discussion issue No.2 is decided against respondent
No.3 and in favour of the petitioner."
5. Thus, it will be seen from the Claims Tribunal's order that a notice under
Order XII Rule 8 CPC (Ex.RW1/B) to the driver and notice to the owner
(the insured) Ex.RW1/E) was served. Their postal receipts and AD cards
were also proved. The driver and the owner of the vehicle, that is, the
Respondents No. 6 and 7 herein preferred not to contest the proceedings
and did not respond to the notice under Order XII Rule 8 CPC. The
Appellant Insurance Company could not have done anything more than
this. If the owner did not come forward to produce any other driving
licence held by the driver at the time of the accident, the inference is that
no other driving licence was in possession of the driver. I am supported
by the judgment of the Learned Single Judge of this Court in New India
Assurance Company Ltd. v. Sanjay Kumar & Ors., ILR (2007) 11 Delhi
733, wherein it is held as under:
"23. Where the assured chooses to run away from the
battle i.e. fails to defend the allegation of having breach the
terms of the insurance policy by opting not to defend the
proceedings, a presumption could be drawn that he has
done so because of the fact that he has no case to defend. It
is trite that a party in possession of best evidence, if he
withholds the same, an adverse inference can be drawn
against him that had the evidence been produced, the same
would have been against said person. As knowledge is
personal to the person possessed of the knowledge, his
absence at the trial would entitle the insurance company to
a presumption against the owner.
24. That apart, what more can the insurance company do
other than to serve a notice under Order 12 Rule 8 of the
Code of Civil Procedure calling upon the owner as well as
the driver to produce a valid driving licence. If during trial
such a notice is served and proved to be served, non
response by the owner and the driver would fortify the case
of the insurance company."
6. Since the Appellant Insurance Company successfully proved the breach
of the terms of the policy, it was entitled to recovery rights. It is ordered
that the Appellant Insurance Company shall be entitled to recover the
amount of compensation paid from Respondents No.6 and 7 in execution
of this very judgment without having recourse to independent civil
proceedings.
7. The amount of compensation shall be disbursed to the Respondents in
terms of the order passed by the Claims Tribunal. The compensation
payable to the Respondents No.3 and 5 shall be paid to the Respondent
No.1.
8. The Appeal is allowed in above terms.
9. Statutory amount of `25,000/- shall be refunded to the Appellant
Insurance Company.
10. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
AUGUST 17, 2012
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