Delhi High Court
Reliance General Insurance Co. ... vs Ankit Maheshwari & Ors. on 12 December, 2012
Author: G.P. Mittal
$ 5, 6, 7, 8, 9, 10, 11, 18, 19 & 20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th December, 2012
+ MAC. APP. 1081/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
ANKIT MAHESHWARI & ORS. ..... Respondents
Through: Ms. Girija Samai, Advocate for
Respondent No.1.
+ MAC. APP. 1082/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
AJAY PAL SINGH & ORS. ..... Respondents
Through: None
+ MAC. APP. 1083/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
BIJENDER SINGH & ORS. ..... Respondents
Through: None
MAC. APP. Nos.1081/2011, 1082/2011, 1083/2011, 1084/2011, 1085/2011, 1086/2011, 1094/2011, 1095/2011, 1096/2011 & 3/2012 Page 1 of 8
+ MAC. APP. 1084/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
HITESH NEGI & ORS. ..... Respondents
Through: None
+ MAC. APP. 1085/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
SHOUKET ALI & ORS. ..... Respondents
Through: None
+ MAC. APP. 1086/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
MASTER VIKRAM & ORS. ..... Respondents
Through: None
+ MAC. APP. 1094/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
DEV MITRA TIWARI & ORS. ..... Respondents
Through: None
MAC. APP. Nos.1081/2011, 1082/2011, 1083/2011, 1084/2011, 1085/2011, 1086/2011, 1094/2011, 1095/2011, 1096/2011 & 3/2012 Page 2 of 8
+ MAC. APP. 1095/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
MASTER GAURAV PATWAL & ORS. ..... Respondents
Through: None
+ MAC. APP. 1096/2011
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
SAROJ & ORS. ..... Respondents
Through: None
+ MAC. APP. 3/2012
RELIANCE GENERAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Sameer Nandwani, Advocate.
Versus
RAJ PAUL @ RAJJU & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These ten Appeals arise out of a common judgment dated 20.09.2011
passed by the Motor Accident Claims Tribunal(the Claims Tribunal)
whereby a compensation as tabulated hereinunder was awarded in favour
of the Respondent/Respondents(Claimant/Claimants) for having suffered
injuries in a motor vehicle accident which occurred on 03.02.2010 by the
Claims Tribunal:-
S. Petition No. MAC.APP.No. Name of the Amount of
No. Injured/Claimant Compensation
1. 403/2010 1081/2011 Ankit `67,500/-
Maheshwari
2. 342/2010 1082/2011 Ajay Pal Singh `1,06,100/-
3. 343/2010 1083/2011 Bijender Singh `25,690/-
4. 345/2010 1084/2011 Hitesh Negi `15,000/-
5. 318/2010 1085/2011 Shouket Ali `15,000/-
6. 346/2010 1086/2011 Master Vikram `15,000/-
Singh Gosain
7. 73/2011 1094/2011 Dev Mitra `3,90,000/-
Tiwari and
Durgesh Tiwari
8. 344/2010 1095/2011 Master Gaurav `15,000/-
Patwal
9. 317/2010 1096/2011 Saroj `15,000/-
10. 242/2010 3/2012 Rajpaul @ Rajju R`3,75,000/-
2. The only ground urged on behalf of the Appellant Insurance Company is
that the Respondent Riyazuddin (owner) committed a breach of the terms
and conditions of the policy by permitting the driver(Amit @ Nata) to
drive RTV No.DL-1VA-1494 without an effective and valid driving
licence and thus the Appellant Insurance Company was entitled to avoid
the contract of insurance. It is urged that the Appellant should at least be
granted recovery rights.
3. I have before me the Trial Court record. The learned counsel for the
Appellant relies on the testimony of Rakesh Sonkar (R3W1) to emphasize
that a notice dated 10.08.2011 (Ex.R3W1/A) under Order 12 Rule 8 CPC
issued on behalf of the Appellant was duly served upon the owner and the
driver. The Insurance Company did whatever was in its power and
discharged the initial onus placed on it to prove breach of the terms and
conditions of the policy. The onus shifted on the owner to prove that the
driver possessed a valid and effective driving licence.
4. It is urged by the learned counsel for the Appellant that the Respondent
Amit @ Nata (driver of the insured vehicle) absconded after the accident
and as per the DAR (Detailed Accident Report), he did not possess any
driving licence. This fact coupled with service of the notice was
sufficient for the Claims Tribunal to hold that the owner committed
breach of the terms and conditions of the policy. It is urged that the
Claims Tribunal erred in not even granting recovery rights despite the
evidence adduced by the Appellant.
5. In the written statement filed by the Appellant, only a vague and general
plea was taken that in case the driver did not possess a valid and effective
driving licence, the Insurance Company shall not be liable to indemnify
the insured. The owner was never informed by the Appellant to produce
the driving licence except by a notice dated 10.08.2011. In pursuance of
the said notice, the owner appeared in the witness box as R2W1. He
testified that the driver(Amit @ Nata) possessed a valid driving licence to
drive a RTV. He deposed that the driver was a professional and
competent driver and he had seen his driving licence, copy of which was
also placed on record. Thus, as soon as the owner was informed about
the alleged breach of the terms and conditions of the policy, he came
forward and produced the copy of the driving licence.
6. It is urged by the learned counsel for the Appellant that the driving
licence ought to have been got proved by the owner by producing a
witness from the concerned licensing authority.
7. I would not agree with the learned counsel. The onus to prove breach of
the terms of the policy is on the insurer. Once the owner stated that he
took the driving test and was satisfied about the driving licence, that was
enough. Moreover, in the instant case, the Appellant Insurance Company
did not even try to verify the driving licence No.025390 issued by District
Transport Officer, Bhind(M.P.). The licence was valid from 12.05.2008
to 11.05.2011, which covered the period of accident. In the
circumstances, the Appellant Insurance Company is not entitled to
complain about the breach of the terms and conditions of the policy.
8. During the course of arguments, a legal question was raised by the
learned counsel for the Appellant Insurance Company. It is stated that
carrying capacity of the insured vehicle RTV No.DL-1VA-1494 as per
registration certificate (Ex.R3W1/C) placed on record was 15. It is urged
that more than 21 passengers were travelling in the insured vehicle at the
time of the accident and 21 of them suffered injuries as the RTV capsized
on account of rash and negligent driving. As many as 21 Claim Petitions
were filed in respect of this accident. It is urged that the Appellant was
liable to pay the compensation only in respect of 15 victims and the
compensation of 15 victims was to be distributed on pro rata basis by the
Court amongst all the 21 victims and rest of the compensation shall be
payable by the owner and the driver of the vehicle.
9. I tend to agree with the learned counsel for the Appellant Insurance
Company. This question was directly dealt with by the Supreme Court in
National Insurance Co. Ltd. v. Anjana Shyam & Ors., (2007) 7 SCC 445.
In the said case, the bus had carrying capacity of 42 passengers for which
it paid the premium. It was overloaded and was carrying 90 passengers.
The bus fell off the road into a nala leading to death of 26 persons
including the driver and injuring 63 other persons. The legal
representatives of the deceased and the injured approached the Motor
Accident Claims Tribunal claiming compensation under Section 166 of
the Act. A contention was raised before the Claims Tribunal that it was a
fundamental breach of the contract of Insurance and therefore, the
Insurance Company could repudiate the policy and was not liable for the
compensation that may be adjudged. The Claims Tribunal brushed aside
the objection and passed the award. The Insurance Company filed 38
Appeals before the Himachal Pradesh High Court. The High Court held
that overloading of a bus which had permit to ply on the route with only
42 passengers did not amount to violation of the route permit or any other
law for which the State Govt. could be held to be contributory negligence
and that the Insurance Company was liable to pay the amounts as
awarded by the Claims Tribunal. The Insurance Company approached
the Supreme Court where it was held that Insurance Company would be
liable to pay compensation in respect of 42 awards passed for the highest
amount which would be distributed amongst the injured/legal
representatives of the deceased equitably. In the instant case, the carrying
capacity was 15 and the vehicle was overloaded with 21 passengers.
10. My attention was drawn to an order dated 17.09.2011 passed by the
Claims Tribunal whereby five Claims Petitions being (Suit Nos.
283/2011, 284/2011, 285/2011, 286/2011 and 341/2010) were dismissed
for want of any evidence and one Petition being (Suit No.316/2010) was
adjourned sine die. The learned counsel for the Appellant concedes that
only fifteen Appeals have been filed. Since compensation has been
awarded in fifteen cases which is payable by the Appellant; there is no
question of payment of compensation on pro rata basis.
11. The Appeals are accordingly dismissed.
12. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant
Insurance Company in each of the cases.
13. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
DECEMBER 12, 2012
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