Delhi High Court
New India Assurance Co Ltd vs Smt Gyanwati & Ors on 23 May, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:23rd May, 2012
+ MAC.APP. 22/2010
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr.Kanwal Choudhary and
Ms.Gunjan Chowksey,
Advocates.
Versus
SMT GYANWATI & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant/Insurance Company impugns a judgment dated
13.02.2009 passed by the Motor Accident Claims Tribunal
whereby while awarding compensation of `5,35,936/- along
with interest @ 9% per annum in favour of Respondents No. 1
to 6, the Appellant's plea of exoneration or grant of recovery
right was rejected.
2. It is urged by the learned counsel for the Appellant that it is
apparent from the certified copy of the report u/s 173 Cr.P.C.
filed against the Respondent No.7 Sugreev Pandey that apart
from his prosecution u/s 279/304A IPC he was also prosecuted
u/s 3 read with Section 181 of the Motor Vehicles Act. The
driver and the owner were also issued a notice u/o 12 Rule 8
CPC to produce the driving licence and the permit. They,
however, failed to produce the same. The Appellant/Insurance
Company having done whatever was within its power was
entitled to be exonerated. In any case recovery right ought to
have been granted in favour of the Appellant/Insurance
Company and against Respondents No. 7 and 8.
3. I have perused the copy of notice dated 23.07.2008 Annexure
'B' and the postal receipt placed on record of the paper book.
This notice does not show that it was addressed to Respondents
No. 7 and 8. Moreover, the said notice was not produced nor
proved during enquiry before the Claims Tribunal, the same
therefore cannot be taken into account. The Appellant,
therefore, cannot take the plea that it did whatever was in its
power by requiring Respondents No. 7 and 8 to produce the
permit of the offending vehicle and the driving licence of the
driver before the Court.
4. It is true that Respondent No.7 was prosecuted for driving a
vehicle without a licence. This was merely an allegation made
by the prosecution against Respondent No.7, no evidence has
been produced that he has been convicted for the offence of
driving vehicle No. HR-38-G 3106 without a valid driving
licence. Merely filing a report u/s 173 Cr.P.C. is not sufficient
to conclude that the accused was driving the vehicle without a
valid licence. I am supported in this view by a judgment of this
Court in Oriental Insurance Company Limited v. Rakesh Kumar
& Ors., MAC APP.329/2010 decided on 03.02.2012.
5. It is well settled that in order to defend on that ground as
mentioned u/s 149(2)(a)(i) and (ii) of the Act the insurer must
prove that there is conscious and willful breach of condition of
policy by the insured (Skandia Insurance Company Limited v.
Kokilaben Chandravadan, (1987) 2 SCC 654 and Sohan Lal
Passi v. P. Sesh Reddy, (1996) 5 SCC 21, United India
Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338).
6. It is urged by the learned counsel for the Appellant that the
driver and the owner remained exparte during the enquiry
before the Claims Tribunal. They preferred to contest the
proceedings even in this Court, therefore argues the learned
counsel, an inference must be drawn that the owner
(Respondent No.8) did not possess the permit in respect of the
vehicle No. HR-38-G 3106 and the driver (Respondent No.7)
did not possess a valid driving licence. I am afraid no inference
can be drawn without requiring Respondents No. 7 and 8 to
produce permit and the driving licence of the driver. These
issues not having been raised before the Claims Tribunal it did
not deal with the same. The Appellant/Insurance Company has
failed to prove that there was some willful breach of the terms
of the policy.
7. The Appeal is devoid of any merit. The same is accordingly
dismissed.
(G.P. MITTAL)
JUDGE
MAY 23, 2012
mr
