New India Assurance Co. Ltd. vs Kedar Singh & Ors.
2012 Latest Caselaw 1325 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Decided on: 27th February, 2012
+       MAC.APP. 148/2010

        NEW INDIA ASSURANCE CO. LTD.     .... Appellant
                     Through: Mr. Kanwal Chaudhary, Adv.

                    versus

        KEDAR SINGH & ORS.                      ..... Respondents
                     Through:          Mr. Aditya K. Dubey, Adv.
                                       with Mr. Ambuj Agarwal, Adv.
                                       for R-3.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant New India Assurance Company Limited impugns the judgment dated 06.01.2010 whereby the compensation of ` 5,43,594/- along with interest @ 7.5% per annum was awarded in favour of Respondents No.1 and 2 for the death of Sunil Kumar, aged 19 years and six months on the date of accident, which occurred on 15.07.2006.

2. The only ground of challenge is that although the driving licence held by the owner/driver Tarun Kumar Agarwal, the third Respondent was fake but the Insurance Company was held liable to pay the compensation. No recovery rights were even

granted to the Appellant.

3. During the pendency of the Appeal, a contention was raised that the Appellant was not provided adequate opportunity to prove that Tarun Kumar Agarwal's licence was fake.

4. By an order dated 04.02.2011, the application under Order 41 Rule 27 CPC for leading additional evidence was allowed. The Appellant produced one Sushanta Ranjan Pattanik, who deposed as under:-

"PW-1 Statement of Sh.Sushanta Ranjan Pattnaik, S/o Late Sh. S.P. Pattnaik, aged About 44 years, R/o AT/PO Hemgir, Distt. Sundargarh (permanent) & AT/PO Maheshdihi, Sundargarh, Odisha, On SA:-

I am the investigator appointed by the appellant company. I was requested by the appellant company to find out about driving licence No.2566/1999 dated 16.07.1999 from the Regional Transport Office, Sundargarh, Odisha. I made inquiries from the O/o Regional Transport Office, Sundargarh, Odisha in respect of this driving license number. I have brought with me letter dated 03.06.2011 issued to me by the Regional Transport Officer, Sundargarh, Odisha. As per this letter driving license No.2566/1999 has not been issued from the RTO, Sundargarh, Odisha. The letter dated 03.06.2011 is Ex.PW-1/1.

XXXX by Mr. Ambuj Aggarwal, counsel for respondent.

I have not made inquiries in respect of Driving License No.132/2001 dated 21.04.2001. I have not made any inquiry from the RTO, Samablpur in respect of driving License No.2556/1996. I had no occasion to see the original driving License of Sh. Tarun Agarwal,

respondent No3."

5. A perusal of the Trail Court record reveals that a copy of the licence number 2556/1999 dated 16.07.1999 was placed on record of the Claims Tribunal. This licence was initially issued by the RTO, Sambalpur (Orissa). It was got renewed on 21.04.2001 by RTO, Sundargarh, Orissa. It is important to note that a counter affidavit was also filed by the third Respondent (the owner and driver of the vehicle).

6. In para 6, it was specifically stated that the licence number 2556/1999 was issued by RTO, Sambalpur. It was renewed by RTO, Sundargarh with number 132/2001 dated 21.04.2001. Along with Counter Affidavit, verification report dated 17.03.2011 (Annexure P-2), certified copy of the original licence issued on 16.07.1999 were also filed.

7. Copy of the Affidavit along with the documents was delivered to the counsel for the Appellant Insurance Company on 13.07.2011. The witness Sushanta Ranjan Pattanik was examined as PW-1 by the Registrar of this Court. He was duly cross-examined that the verification of the licence number 132/2001 dated 21.04.2001 has not been made by him from the Authority. He also admitted that he did not make any inquiry from RTO, Sambalpur in respect of driving licence number 2556/1999. It is, therefore, apparent that the Appellant did not make the verification from the Authority i.e. RTO, Sambalpur which issued the driving licence originally. Moreover, enquiry

about renewal of the driving licence was made with the wrong number. The Appellant Insurance Company thus failed to discharge onus of proving that there was any willful breach on the part of the third Respondent. Rather, verification report filed along with counter affidavit shows that the licence was valid and effective. The Appellant Insurance Company preferred not to verify the driving licence with correct particulars.

8. Under the circumstances, there is no question of breach of the terms of policy and the Appellant could not have avoided the liability to pay the compensation.

9. The Appeal is devoid of any merit. The Appellant's conduct was throughout negligent. It did not try to obtain correct particulars in spite of the counter affidavit and the verification report filed before this Court by the third Respondent.

10. In the circumstances, the Appeal is dismissed with costs of ` 20,000/-.

(G.P. MITTAL) JUDGE FEBRUARY 27, 2012 vk