Delhi High Court
Oriental Insurance Co Ltd vs Montu & Ors on 11 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd March, 2012
Pronounced on: 11th May, 2012
+ MAC.APP. 188/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
MONTU & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. The Appellant Oriental Insurance Company Limited impugned
a judgment dated 06.12.2010 on the ground that the
compensation of `2,04,500/- awarded in favour of the first
Respondent Montu was excessive and that the Appellant
Insurance Company was not exonerated in spite of the fact that
it was proved that the driver Alimuddin Sheikh (Respondent
No.2) did not possess a valid driving licence and the owner Hari
Kishan Sharma (respondent No.3) did not have a permit to drive
the vehicle.
2. On 15.02.2003 at about 2:15 P.M. the first Respondent was
proceeding on his bicycle towards Gian Mandir Road, Jaitpur
when he was hit by a truck No.HR-38-C-7817 driven by the
second Respondent in a rash and negligent manner.
3. The finding on negligence is not challenged by the Appellant
Insurance Company.
4. The first Respondent was removed to All India Institute of
Medical Sciences (AIIMS). He suffered very serious injuries in
his abdomen, left shoulder, right eye and forehead. He
underwent three surgeries in AIIMS. He had to be put on
ventilator from 19.02.2003 to 26.02.2003. He remained
admitted in AIIMS from 16.02.2003 to 04.03.2003. The
Appellant although recovered from the injuries, but suffered
partial loss of vision in respect of his right eye. He was issued a
Disability Certificate by Hindu Rao Hospital showing that he
had suffered 30% partial visual disability.
5. The compensation awarded is tabulated hereunder:-
Sl. Compensation under various heads Awarded by
the Claims
No. Tribunal
1. Loss of Income `7,500/-
2. Pain & Suffering ` 50,000-
3. Special Diet ` 25,000/-
4. Conveyance ` 10,000/-
5. Loss of Appearance ` 25,000/-
6. Attendant's Care ` 6,000-
7. Disability (loss of future income) ` 81,000/-
Total ` 2,04,500/-
6. Following contentions are raised on behalf of the Appellant
Insurance Company:-
(i) The Disability Certificate showing 30% visual disability
was not proved in accordance with law. The Claims
Tribunal erred in granting compensation of `81,000/-
towards the loss of earning capacity.
(ii) It was established that the driver did not possess a valid
driving licence and the owner did not have a valid permit
in respect of the offending vehicle on the date of the
accident. The Appellant Insurance Company was thus
entitled to be exonerated.
7. It is borne out from the record that the first Respondent suffered
very serious injuries. He had to undergo three surgeries and
was battling for life. He remained on ventilator for seven days.
Although, it was claimed that the first Respondent used to sell
vegetables and earned `3,000/- per month, yet as he was a
minor, his income was treated as notional i.e. `15,000/- per
annum for award of the loss of earning capacity.
8. The discharge summary issued by AIIMS and the Disability
Certificate mark 'X' issued by Hindu Rao Hospital reveal that
the first Respondent suffered disability to the extent of 30% in
his right eye. It is true that the first Respondent ought to have
examined the doctor to prove the disability certificate (Raj
Kumar v. Ajay Kumar & Anr., 2011 (1) SCC 343), yet
considering the serious nature of injuries including the fact that
the certificate was issued from a Govt. hospital coupled with the
fact that just a sum of `81,000/- was awarded towards loss of
future income, I would not like to remand the case back for
proof of the disability certificate in accordance with law and
would not interfere with the impugned judgment on the award
of `81,000/- under this head.
9. Regarding breach of the policy condition, I would first deal with
the issue of fake licence which has been agitated by the
Appellant. It is true that the second Respondent was challaned
for driving the vehicle without a licence. Challan of a driver for
an offence under Section 3/181 of the Motor Vehicles Act is not
sufficient to show that the driver did not possess a valid driving
licence. (Oriental Insurance Company Limited v. Rakesh Kumar
& Ors., MAC APP.329/2010 decided on 03.02.2012).
10. It may be noticed that this accident took place in the year 2003.
The Claim Petition was also filed in the year 2003 itself.
Notices under Order XII Rule 8 CPC, Ex.R3W1/3 and R3W1/4
were issued to the driver and owner respectively to produce the
driving licence and the permit only on 26.03.2010 i.e. after
seven years of filing of the Petition and five years of filing of
the written statement by the Appellant. The driver immediately
produced the driving licence which was verified by the
Appellant Insurance Company.
11. On the issue of driving licence, the Claims Tribunal held as
under:-
"21. Now coming to the defence of fake licence, it be
observed that no effort for proving the above fact has
been made by the Insurance Company. In the statement,
Shri V.D.Talwar admitted that notice under Order 12
Rule 8 CPC has remained unserved upon the
driver/owner. He claimed that the original report given
by the licensing authority along with the investigator's
report was being filed and exhibited as Ex.R3W1/9. No
reason is shown for not summoning the investigator who
solicited the inquiry from the Transport Authority despite
the fact that the investigator is on panel of the Insurance
Company and hence, under their control. There is a
mode of proving the report of the Transport Authority.
Merely by filing the report on record, it would not get
established automatically. The insurance company has
made no effort to serve the official of the Transport
Authority, Siliguri, West Bengal. It is a settled law that
unless the primary mode of evidence has been exhausted,
the secondary mode cannot be permitted to be used.
Even otherwise, no permission is obtained to lead the
evidence of secondary mode. In such circumstances, in
view of the judgment of National Insurance Company
Limited verses Swaran Singh, 2004 ACJ 1 SC and Ram
Babu Tiwari versus United India Insurance Co. Ltd.,
2008 ACJ 2654, I am of the view that the insurance
company is not entitled to any recovery right for which it
may approach the civil court."
12. No report from the Licencing Authority was obtained by the
Appellant Insurance Company nor any witness was summoned
and thus filing of the report of the Investigator by R3W1 V.D.
Talwar, Administrative Officer of the Appellant was not
sufficient to discharge the burden on the Appellant to prove that
there was a conscious breach of the terms of the policy. The
Claims Tribunal's finding on this aspect cannot be faulted.
13. As far as non production of the permit to ply the vehicle is
concerned, the case of possession of a driving licence is
different as a person can obtain a driving licence from any place
throughout the country. Permit is to be issued by the concerned
transport authority where the vehicle is registered. The
Appellant was in possession of the registration No. HR-38-C-
7817 of the vehicle. The Appellant was expected to note the
particulars of registration and registering authority at the time of
the Insurance. The same would otherwise be available from the
registration number of the vehicle involved in the accident. The
Appellant Insurance Company could have summoned the record
from the concerned transport authority as to the validity of the
permit, if any, issued by it. That having not been done, by the
Appellant Insurance Company, it did not discharge the onus of
proving the breach of policy condition.
14. The Appellant was rightly fastened with the liability and not
granted the recovery rights.
15. The impugned order does not call for any interference.
16. The Appeal is accordingly dismissed.
17. CM APPL.20917/2011 for additional evidence also stands
disposed of.
(G.P. MITTAL)
JUDGE
MAY 11, 2012
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