National Insurance Co.Ltd vs Smt. Sangeeta Tokas
2012 Latest Caselaw 3055 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: 8th May, 2012

+                           MAC.APP.522/2011

NATIONAL INSURANCE CO.LTD.           ..... Appellant
                 Through:  Mr.Manoj Ranjan Sinha &
                           Mr.Vivekanad Rana, Advs.

                   versus


SMT. SANGEETA TOKAS                             ..... Respondents
                 Through:             Mr.C.R.Anand for R 6 & 7.

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

G. P. MITTAL, J. (ORAL)

1. The Appellant, National Insurance Company Limited, impugns a Judgment dated 24.1.2011 passed by the Motor Accident Claims Tribunal, whereby a compensation of `13,65,000/- was awarded.

2. The sole ground raised during the hearing of Appeal is that Respondent No.7, Shamsher Singh, registered owner of the offending vehicle failed to produce the permit inspite of a notice under Order XII Rule 8 CPC. Thus, the Claims Tribunal ought to have drawn an inference that Respondent No.6 did not possess any valid permit to ply the vehicle No.HR 13 GA 0461 in the State of Haryana, where the accident took place.

3. It is well settled that the onus is on the Insurer to prove that there is a conscious and willful breach of the terms of the policy by the insured. It is true that a notice under Order XII Rule 8 was proved to have been served upon Respondent No.6. Respondent No.6 also failed to produce the permit to show that the vehicle could be plied in the State of Haryana. It is important to note that the offending vehicle No.HR 13 GA 0461 must be registered with any District Transport Authority in the State of Haryana. The service of notice under Order XII Rule 8 CPC only entitled to the Appellant to produce secondary evidence in respect of the document sought to be produced by Respondent No.6. It is not a case where the Appellant Insurer would not know as to where from the permit was issued, as in case of a driving licence. The driving licence can be issued by any licensing authority in the country. The permit of a vehicle to ply in a State or any other State is primarily to be issued by the Transport Authority where the vehicle is registered. It is important to note that the vehicle is registered in the State of Haryana and it must have been plying in that State only. The Appellant did not make any efforts to summon the record from the concerned Transport Authority to prove that Respondent No.6 did not have any permit to ply the vehicle on Jhajjar Gurgaon road within the State of Haryana. The Appellant having not been able to show any conscious and willful breach of the terms of the policy could not avoid liability to indemnify the Insured.

4. The Appeal is devoid of any merit. The same is, accordingly, dismissed.

5. The statutory amount of `25,000/- shall be refunded to the Appellant Insurance Company.

(G.P. MITTAL) JUDGE MAY 08, 2012 RS/