Delhi High Court
The National Insurance Co. Ltd. vs Om Prakash & Ors. on 29 March, 2012
Author: G.P. Mittal
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:29th March, 2012
+ MAC. APP. No.77/2008
THE NATIONAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. Pankaj Seth, Advocate
Versus
OM PRAKASH & ORS. ..... Respondents
Through: Mr. Rakesh Malhotra, Advocate
for the Respondent No.3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM. APPL No.1819/2008(delay)
There is delay of 25 days in filing the Appeal. For the reasons
stated in the application, the delay is condoned.
The application is allowed.
MAC APP. No.77/2008
1. The Appellant National Insurance Co. Ltd. impugns a judgment
dated 23.08.2007 whereby while awarding a compensation of
`97,416/- in favour of the First Respondent, the Insurance
Company was made liable to pay the same.
2. The sole contention raised on behalf of the Appellant Insurance
Company is that during inquiry before the Claims Tribunal the
Appellant successfully proved that the Second Respondent
(Devender Singh) did not possess a valid driving licence on the
date of the accident and thus the Insurance Company was
entitled to the recovery rights against the owner and the driver
of the vehicle.
3. An issue regarding the validity of the driving licence was
framed by the Claims Tribunal on 17.01.2001. The Claims
Tribunal dealt with the issue as under:
"8. The Insurance company took a plea that they shall
not be liable to pay compensation in case it is found that
R1 was not holding a valid and proper DL as on the
date of accident. The respondent insurance company
has contended that since on verification it has been
found that R1 was not holding a valid and proper DL as
on the date of accident, they are not liable to pay
compensation. In support of their contention, the
insurance company has examined Sh. S.K. Jindal as
R3W1. He proved the certification report as Ex.R3W1/7.
Perusal of the certified copy of the seizure memo
Ex.R3W1/7 indicates that DL No.48 RNA PIR was
seized from the possession of R1. The insurance
company got this DL verified through their investigator
Sh. Vishal Avasthi Adv. The document Ex.R3W1/7
dt.19.5.05 is a letter written by Sh. Vishal Awashti Adv
to the Motor Licensing Officer, Dharamshala,
requesting for DL verification in respect of DL No.48.
On the same letter, the endorsement is purported to have
been made by Registering and Licensing Authority,
Dharamshala, Kangra that DL No.48 has not been
issued by their office on 26.12.97. The insurance
company has neither examined any witness from
Registering/Licensing Authority, Dharamshala nor did
they examine Sh. Vishal Awashti Adv. In the cross
examination Sh. S.K. Jindal admitted that he cannot
identify the signatures of Registering and Licensing
Authority at point A. Admittedly, this document was not
signed in the presence of R2W1. It is a settled
proposition that insurance company in order to be
exonerated from its liability is required to prove that
insured has committed willful breach of the terms and
conditions of the policy. Merely because the driver was
holding a fake license is not sufficient to discharge the
insurance company from its liability. The insurance
company is required to prove that the insured had
committed willful breach of the terms and conditions of
the policy. In this regard reliance can be placed upon in
United India Insurance Company Ltd. vs. Lehru and
others SC 2003 page 173 wherein it was inter-alia
observed as under:
x x x x x
x x x x x
9. The insurance company has proved the notice
under order 12 rule 8 CPC sent to the insured. I have
perused the said notice. In the said notice the insured
was simply asked to produce the RC, insurance policy
and cover note of the vehicle. The insurance company is
required to prove by way of positive evidence that
insured has committed willful breach of the terms and
conditions of the policy. In the present case even
insurance company has not led sufficient evidence to
show that D/L held by R-1 was not valid. I consider that
insurer i.e. R 3 has fallen short of proving that there was
willful breach of the terms and conditions of the policy,
hence they cannot be exonerated from their liability."
4. It is, therefore, evident that no authentic evidence was produced
by the Insurance Company to establish that the driving licence
held by Devender Singh was not valid.
5. Considering the difficulty in summoning witnesses from the
registering authorities, while framing the Delhi Motor
Accidents Claims Tribunal Rules, 2008, under Rule 7 it has
been provided that the submission of report as per Form "D"
(provided in the Rules) by the registering authority would be
made admissible without any formal proof. Rule 7 is extracted
as under:
"7. Presumption about reports- The contents of
reports submitted to the Claims Tribunal in Form "A"
and Form "D" by investigating police officer and
concerned registering authority respectively, and
confirmation under clause (b) of rule 5 by the
insurance company shall be presumed to be correct,
and shall be read in evidence without formal proof, till
proved to the contrary."
6. The Appellant Insurance Company could have proved the report
Ex.R3W1/7 by examining any person who was conversant with
the signatures of registering and licencing authority at point „A‟.
That having not been done, endorsement purported to be issued
by registering and licencing authority Dharmshala, Kangra was
of no avail. In the alternative, the Appellant Insurance
Company could have requested the transport authority to send a
report as per Form "D" to the Claims Tribunal directly or could
have requested the Claims Tribunal to seek a report in the
prescribed form which would have been admissible without any
formal proof unless proved to the contrary. On the basis of the
material on record, the conclusion reached by the Claims
Tribunal cannot be interfered with.
7. The Appeal is devoid of any merit; the same is accordingly
dismissed.
8. The statutory amount shall be refunded to the Appellant
Insurance Company.
(G.P. MITTAL)
JUDGE
MARCH 29, 2012
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