Delhi High Court
New India Assurance Co. Ltd. vs Suresh Gupta & Ors on 21 February, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th January, 2012
Pronounced on: 21st February, 2012
+ MAC. APP. No.314/2010
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Kanwal Chaudhary,
Advocate
Versus
SURESH GUPTA & ORS .... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant New India Assurance Co. Ltd. impugns a
judgment dated 14.12.2009 whereby a compensation of
`62,364/- was awarded in favour of the First Respondent for
having suffered injuries in an accident which took place on
31.10.2008. According to the case set up by the First
Respondent, he suffered injuries on account of rash and
negligent driving of a tanker bearing HR-46-5932 which was
being driven by the Second Respondent and was owned by the
Third Respondent. The finding of negligence and the quantum
of compensation is not disputed in the Appeal.
2. The only ground of challenge is that the offending vehicle did
not have any permit to ply in the area of National Capital
Territory of Delhi and thus the owner was guilty of breach of
the terms of policy and could avoid liability to pay the
compensation under Section 149(2)(a)(i)(b) Motor Vehicles
Act.
3. An application under Section 151 CPC was moved by the
Appellant before the Claims Tribunal which was dismissed by
an order dated 12.12.2009. The Claims Tribunal held as under:
"Perusal of the file reveals that insurer,
respondent No.3 was served with the summons of
the claim petition on 09/04/09. Insurer was having
ample time, manpower, financial power and
opportunities to ascertain of any breach of any
term or condition of the policy. The written
statement was filed by respondent No.3 on
16/04/09 admitting the policy of the alleged
offending vehicle as on the date of accident but
nowhere in the written statement was there
mention of any breach of any term or condition of
the insurance policy by the insured in vivid and
clear terms. Issues were framed on 11/05/09.
Petitioner led his evidence on 06/10/09. The case
was then fixed for 11/11/09 for respondent's
evidence and respondents were to take steps, if
any, within a week thereof. No investigator report
was filed by the insurer to show any breach of any
term or condition of the policy by insured. No
witness of the respondents was present on
11/11/09 nor was summoned. The request of the
Ld. Counsel for respondent No.3 for adjournment
on 11/11/09 was declined. Respondent's evidence
was closed on 11/11/09. The case was fixed for
final arguments on 02/12/09. On 02/12/09
arguments were addressed, inter alia by Ld.
Counsel for respondent No.3 present. The insurer
has not preferred any application for any
amendment in the written statement. The case was
fixed for orders on 14/12/09. Today one working
day prior to the date fixed for orders, the Ld.
Counsel for insurer has turned up with the above
referred two applications and the file has been
taken up.
In the case of National Insurance Co. Ltd.
Vs. Swaran Singh reported in 2004(2) RCR (Civil)
114, it has been inter alia held that the breach of
the policy condition that is disqualification of the
driver or invalid driving license of the driver, has
to be proved to have been committed by the
insured for avoiding liability by the insurer. Even,
mere absence, fake or invalid driving license for
driving at the relevant time are not in themselves
defences available to insurer against either the
insured or the third parties. To avoid its liability
towards the insured, the insurer has to prove that
the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling
any condition of the policy regarding the use of
vehicle.
After the arguments were heard and the
judgment is to be pronounced, the Ld. Counsel for
insurer has filed the abovesaid two application.
Despite opportunities, the respondents have not
led any evidence nor any investigator report had
been filed. It is submitted that the driving license
of the driver of the alleged offending vehicle has
yet not been verified by the officials of the insurer.
This is an inquiry and not a trial. Purpose of
formation of Tribunal is to award just
compensation to the victims of road accident
expeditiously. Towards that objective, every act
and order of this Tribunal has been so as to
expedite the inquiry and conclude it. All
abovesaid elicits that insurer has not been diligent
enough for ascertaining and bringing on record
and prove the breach of any term or condition of
the policy by insured in terms of law laid. The
abovesaid two applications are lacking merits, not
maintainable, so are accordingly dismissed with
costs of Rs.2,000/- each."
4. Along with the Appeal, an application was moved by the
Appellant seeking leave of the Court to prove that the owner
did not possess any permit to ply the vehicle in the State of
NCT of Delhi. The application was allowed. The Appellant
examined Mukesh Kumar, an official from RTO Faridabad,
who deposed that permit No.539/H/07 was issued in respect of
a vehicle HR-46-5932 on 03.07.2007 and was valid till
02.07.2010. AW2 Ram Avtar, an investigator proved his
report Ex.AW2/1, which is extracted hereunder:
"Our representative got the State Permit of the
insured vehicle bearing No.HR-46-5932 verified
from RTO Faridabad, Haryana. As per verified
report of permit the vehicle is authorized to ply in
the State of Haryana. Hence found valid on the date
of accident. The copy of Permit attached herewith.
Name of owner & Mr. Raj Kumar R/o
address Faridabad,
Haryana
Vehicle No. HR-46-5932
Permit No. 539/H/07
Valid from 3/07/2007
Valid up to 2/07/2010
Date of Accident 31/10/08
Name of Authority Faridabad, Haryana"
5. It is important to note that the owner of every vehicle is free to
apply for temporary permit for plying a vehicle in any
particular area from time to time. The Appellant did not issue
any notice to the owner Mewa Devi(the Third Respondent)
requiring her to produce the permit, if any, for plying in the
State of Delhi. She was not summoned to appear as a witness
to confront that she did not possess any permit to ply the
vehicle in the State of Delhi. No evidence was brought to prove
that the third Respondent did not possess any temporary permit
on the day of the accident.
6. It is well-settled that the Insurance Company was under
obligation to establish that the insured was guilty of willful
infringement of the terms of the policy. (United India
Insurance Company Ltd. v. Lehru & Ors, (2003) 3 SCC 338
and National Insurance Company Limited v. Swaran Singh &
Ors, (2004) 3 SCC 297.
7. In the absence of requiring the owner to produce the permit, if
any, for plying in the territory of NCT of Delhi or the
circumstances under which the vehicle was found in Delhi, the
Appellant has failed to establish that there was any willful
breach of the terms of the policy. Thus, the Appellant cannot
avoid the liability.
8. The Appeal is devoid of any merit; it is accordingly dismissed.
9. No costs.
(G.P. MITTAL)
JUDGE
FEBRUARY 21, 2012
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