Sanjay Datta vs The New India Assurance Company ...
2012 Latest Caselaw 6662 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 21st November, 2012
+        MAC.APP. 296/2009

         SANJAY DATTA                                      ...... Appellant
                               Through:   Mr. Bhupendra S. Chauhan, Adv.

                      versus


         THE NEW INDIA ASSURANCE COMPANY LTD. & ORS.
                                                         ..... Respondents
                       Through: Ms. Meenakshi Midha, Adv. for
                                Mr. Niraj Singh, Adv. for R-1.
         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                   JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant Sanjay Datta, who is the owner of the Maruti Car No.DL-

3CG-9914 takes exception to the judgment dated 05.11.2008 only to the extent that the recovery rights ought not to have been granted against him as the Insurance Company failed to prove that there was conscious and willful breach of the terms and conditions of the insurance policy.

2. During the course of arguments it was stated that the Appellant was not properly served and, therefore, he did not have an opportunity to defend the Claim Petition. Thus, the impugned judgment is liable to be set aside and the case should be remanded back to the Claims Tribunal for giving an opportunity to him (the Appellant) to prove that he had taken all precautions to avoid any breach of the terms and conditions of the policy.

3. I have before me the Trial Court record. The Appellant was served by registered post for his appearance on 08.08.2001; the AD card is on record. Since the driver was also not appearing and was not available at the given address, the Appellant as well as the driver Govind Singh were also served by way of publication of notice in the newspaper.

4. Not only this, a notice under Order XII Rule 8 CPC Ex.PW-1/A was also sent to the Appellant and Govind Singh, the driver of the offending vehicle. The notice was duly served. The postal receipt Ex.PW-1/B and the AD card Ex.PW-1/E were duly proved. The notice sent to the driver by registered post (postal receipt Ex.R1W1/C) was returned back with the report that no such person was residing at the given address. The return envelope was also proved as Ex.R1W1/D.

5. It is not in dispute that the whereabouts of the driver were not known and even in these proceedings the Appellant, who is the owner of the offending vehicle himself served him with a notice of this Appeal by publication. Thus, the Appellant Insurance Company did whatever was in its power to prove that the insured committed breach of the terms and conditions of the policy. The onus shifted on the driver and the owner to prove that the driver possessed a valid and effective driving licence or in any case there was no conscious breach of the terms and conditions of the policy on the part of Insurance Company. I am supported in this view by the judgment of this Court in New India Assurance Company Ltd. v. Sanjay Kumar & Ors., ILR (2007) 11 Delhi 733, wherein it was held as under:

"23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breach the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.

24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving licence. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."

6. The Claims Tribunal's order granting recovery rights against the Appellant, the owner and Respondent No.3, the driver of the offending vehicle cannot be faulted.

7. Thus, the Appeal has to fail; it is accordingly dismissed.

8. The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company.

9. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE NOVEMBER 21, 2012 vk