Delhi High Court
National Insurance Co. Ltd. vs Sita Ram & Ors on 11 December, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : 11th December, 2012
+ MAC.APP.No.198/2005
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through : Mr. Vijay Chandra Jha and
Ms. Sonia Sharma, Advs.
versus
NAWAB & ORS. ..... Respondents
Through : None.
+ MAC.APP.No.212/2005
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through : Mr. Vijay Chandra Jha and
Ms. Sonia Sharma, Advs.
versus
SITA RAM & ORS. ..... Respondents
Through : None.
+ MAC.APP.No.219 /2005
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through : Mr. Vijay Chandra Jha and
Ms. Sonia Sharma, Advs.
versus
NAFISA BEGUM & ORS. ..... Respondents
Through : None.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
MAC.APP.Nos.198, 212 and 219 of 2005 Page 1 of 5
JUDGMENT(ORAL)
1. The appellant has challenged the common award of the
Claims Tribunal to the limited extent that the Claims Tribunal has
not granted the recovery rights to the appellant to recover the
award amount from the owner of the offending vehicle.
2. The accident dated 1st September, 1995 resulted in death of
Sanjay Kumar and Hari Singh. Late Hari Singh and Late Sanjay
Kumar were travelling in dumper No.HR-38-9458 being driven by
Late Hari Singh. When the said dumper reached main Najafgarh
Road, opposite Pooja Service Station, it was hit by tanker No.HR-
39-0227 coming from the opposite direction. The tanker was being
driven by its driver, Bir Singh in a rash and negligent manner at a
very high speed. The petroleum being carried in the dumper
caught fire due to which Late Hari Singh and Late Sanjay Kumar
were burnt to death and the dumper was also completely damaged.
Three claim petitions were filed before the Claims Tribunal. Two
claim petitions were filed by the legal representatives of Late Hari
Singh and Late Sanjay Kumar whereas the third claim petition
related to damage to the dumper by its owner.
3. The appellant contested the claim petitions on the ground
that the driver of the tanker was holding a fake driving licence and,
therefore, the appellant is entitled to recovery rights against the
owner of the tanker. The appellant examined its officer Ajay
Kumar as R1W1 who proved the notice under Order 12 Rule 8 of
the Code of Civil Procedure issued to the driver and owner of the
offending vehicle. The said notice along with postal receipts and
AD cards were proved as Ex.R1W1/2 and Ex. R1W1/5. R1W1
proved that the claim form filed by the owner of the offending
vehicle in which the particulars of the driving licence of the driver
were mentioned. R1W1 deposed that the details of the driving
licence were verified by the insurance company from Ajmer and
Hissar. The verification reports were marked as Mark 'B' and 'C'.
As per the said reports, the driving licence had been issued in the
name of Iqbal Singh son of S.N. Singh in respect of the motor
cycle on 11th September, 1988. The appellant also examined the
officer from Road Transport Office, Ajmer as R1W2. R1W2
produced the licence register and deposed that no licence bearing
No.47518 was ever issued by the authority to the driver of the
offending vehicle.
4. The Claims Tribunal accepted the testimony of R1W1 and
R1W2 and held that the driving licence of the driver of the tanker
was not genuine. However, the Claims Tribunal declined to grant
the recovery rights to the appellant on the ground that the appellant
had not proved that the owner of the offending vehicle was aware
that the licence was fake and that the breach on the part of the
owner was willful. The Claims Tribunal referred to and relied
upon the judgment of the Supreme Court in United India Insurance
Company Ltd. v. Lehru and ors. 2003 ACJ 611.
5. Learned counsel for the appellant has urged at the time of
hearing of these appeals that the finding of the Claims Tribunal is
erroneous. It is submitted that the appellant issued the notice under
Order XII Rule 8 of the Code of Civil Procedure to the owner as
well as the driver of the offending vehicle which was proved as
Ex.R1W1/2 and both of them failed to respond to the notice despite
service. It is further submitted that the appellant successfully
proved the driving licence of the driver to be fake. It is further
submitted that the owner of the offending vehicle has not led any
evidence to prove that he had taken reasonable care and the breach
on his part was not willful. It is submitted that the appellant is
entitled to recovery rights against the owner of the offending
vehicle. Learned counsel for the appellant relies upon National
Insurance Company Ltd. v. Swaran Singh, (2004) 3 SCC 297,
National Insurance Company Ltd. v. Kusum Rai, (2006) 4 SCC 250
and Kusum Lata v. Satveer, (2011) 3 SCC 646.
6. There is merit in the contention of the learned counsel for the
appellant. Since the owner of the offending vehicle failed to
respond to the notice under Order 12 Rule 8 of the Code of Civil
Procedure and also failed to rebut the evidence led by the appellant,
the presumption is drawn against him under Section 114 of the
Indian Evidence Act, 1872 that the breach on the part of the owner
was willful. The appellant is entitled to recovery rights against the
owner of the offending vehicle on the ground that the driving
licence held by the driver of the offending vehicle was proved to be
fake.
7. For the aforesaid reasons, the appeals are allowed and the
impugned award is modified to the limited extent that upon making
payment of the award amount to the claimants, the appellant shall
be entitled to the recovery rights against respondent, Sunil Kumar.
J.R. MIDHA, J
DECEMBER 11, 2012
dk
