Delhi High Court
The New India Assurance Co. Ltd. vs Suresh Kumar & Ors. on 1 June, 2012
Author: G.P. Mittal
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:1st June, 2012
+ MAC. APP. No.648/2012
THE NEW INDIA ASSURANCE CO. LTD. ... Appellant
Through: Mr. Navdeep Singh, Advocate
Versus
SURESH KUMAR & ORS. .... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
C.M. APPL No.10514/2012
Exemption allowed, subject to all just exceptions.
The Applications stands disposed of.
CM. APPL No.10513/2012 & MAC. APP. No.648/2012
1. The Appellant New India Assurance Co. Ltd. impugns a
judgment dated 27.02.2012 passed by the Motor Accident
Claims Tribunal(the Claims Tribunal) whereby while awarding
a compensation of `1,05,051/-, the Appellant's plea for grant of
recovery rights was rejected.
2. The Appellant has moved an Application for leading evidence
on the ground that it successfully proved breach of the terms of
the policy by issuing a notice under Order XII Rule 8 CPC to
the Respondents No.2 and 3 to produce the driving licence of
the driver. Respondents No.2 and 3 failed to produce the
driving licence. A report was also obtained from District
Transport Officer, Amritsar which disclosed that the driver did
not possess a valid driving licence issued by that authority. It
has been stated that the Claims Tribunal committed an error in
holding that the report was not proved. The Appellant
Insurance Company may be permitted to prove the report of the
Transport Authority in order to prove the breach of the terms of
the policy.
3. Order XLI Rule 27 deals with the grounds under which a party
can be permitted to lead additional evidence in an Appeal. It
reads as under:
"ORDER XLI
27. Production of additional evidence in
Appellate Court-(1) The parties to an appeal shall
not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate
Court. But if-
(a) the Court from whose decree the appeal
is preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise
of due diligence, be produced by him at the time
when the decree appealed against was passed, or
(b) the Appellate Court requires any
document to be produced or any witness to be
examined to enable it to pronounce judgment, or for
any other substantial cause,
The Appellate Court may allow such evidence or document
to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission."
4. It is nowhere the case of the Appellant that the Claims Tribunal
refused to admit any evidence which ought to have been
admitted or that the evidence was not within its knowledge or
could not be produced in spite of due diligence. No case has
been made out by the Appellant for production of additional
evidence. The Application (CM. APPL No.10513/2012) is
accordingly dismissed.
5. While holding that the Appellant failed to prove the breach of
the terms of the policy, the Claims Tribunal observed as under:
"60. No witness was examined from District
Transport Authority, Amritsar to show that the license
was fake. No one was examined who had been
District Transport officer sign the report of
investigator to prove signatures of District Transport
Authority.
61. Reliance can be placed on Bajaj Allianz
General Insurance Company Ltd. v. Bhikhari yadav,
MAC APP. No.727/2011 dated 3.1.2010 in this
regard. In that judgment Hon'ble High Court of
Delhi has held in para 6 as under:
"It is settled that in order to avoid the
liability the onus on the Insurance Company
to prove that there is breach of the policy
conditions by the insured. The breach
committed by the insured will be willful e.g.
where the insured entrusted a vehicle to a
duly licensed driver and it is unlawfully
driven by any other person not holding a valid
and effective driving license, it cannot be said
that the owner is guilty of willful breach.
Similarly, where a vehicle is stolen by a thief
holding no license and meets with an
accident, it cannot be said that the insured is
guilty of a willful breach. Rather, the insured
himself is a victim."
62. In para no.18, it was held as under:-
"In any case, the contents of the
certificates can be presumed to be genuine it
has to be proved that it is signed by the
District Transport Officer, Gawahati. That
having not been done, the certificate was not
of any value and the same was not rightly
taken into consideration by the Tribunal.
Since the insurance company failed to
discharge the onus that the driving license
held by the first Respondent was fake, it
cannot avoid its liability."
6. It is well settled that the onus is on the Insurance Company to
prove breach of the terms of the policy in order to avoid its
liability. Service of notice under Order XII Rule 8 permitted
the Appellant to lead secondary evidence. The report of the
District Transport Officer, Amritsar could have been proved
either by examining any official from the District Transport
Authority or any person who was conversant with the signatures
of the said District Transport Authority or else under Rule 7 of
the Delhi Motor Accidents Claims Tribunal Rules, 2008 a
report could have been straightway sent to the Claims Tribunal
on the Appellant's request which would be per se admissible in
evidence. None of the things was done by the Appellant.
7. The Claims Tribunal's conclusion that the Appellant failed to
prove the breach of the terms of the policy cannot be faulted.
The Appeal is dismissed in limine.
8. Pending Applications stand disposed of.
(G.P. MITTAL)
JUDGE
JUNE 01, 2012
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