Delhi High Court
National Insurance Company Ltd. vs Sarita Hasidja & Ors. on 23 November, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd November, 2012
+ MAC.APP. 476/2011
NATIONAL INSURANCE COMPANY LTD. ....... Appellant
Through: Mr. L.K. Tyagi, Adv.
versus
SARITA HASIDJA & ORS. ..... Respondents
Through: Mr. J.S. Kanwar, Adv. for R-1 to R-6.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. By virtue of this Appeal, the Appellant National Insurance Company
Limited seeks recovery rights against the Respondents No.7 and 8 in
respect of award of compensation of `32,48,600/- in favour of
Respondents No.1 to 6 for the death of H.C. Hasija, who died in a motor
vehicle accident which occurred on 03.08.2006.
2. The finding on negligence or on the quantum of compensation is not
challenged by the Appellant Insurance Company.
3. The only ground of challenge raised is that the Appellant successfully
proved the breach of the terms and conditions of the policy. The Claims
Tribunal erred in declining the recovery rights to the Appellant against
the driver being the principal tortfeasor and against the owner being the
insured of the offending vehicle and employer of Respondent No.7.
4. The Claims Tribunal dealt with the issue of liability in para 24 to 27 of
the impugned judgment. The Claims Tribunal relied on the judgment of
this Court in Deepak Kumar v. National Insurance Co. Ltd., MAC
APP.139/2007 decided on 07.02.2008 and held that mere prosecution of
the driver under Section 3/181 of the Motor Vehicles Act, 1988 (the Act)
was not enough to prove the breach of the terms and conditions of the
policy. The Claims Tribunal further relied on National Insurance
Company Limited v. Swaran Singh & Ors., (2004) 3 SCC 297 where it
was held as under:-
89. ...........A person possessing a driving licence for "motorcycle
without gear", [sic may be driving a vehicle] for which he has no
licence. Cases may also arise where a holder of driving licence for
"light motor vehicle" is found to be driving a "maxi-cab",
"motor-cab" or "omnibus" for which he has no licence. In each
case, on evidence led before the Tribunal, a decision has to be
taken whether the fact of the driver possessing licence for one type
of vehicle but found driving another type of vehicle, was the main
or contributory cause of accident. If on facts, it is found that the
accident was caused solely because of some other unforeseen or
intervening causes like mechanical failures and similar other
causes having no nexus with the driver not possessing requisite
type of licence, the insurer will not be allowed to avoid its liability
merely for technical breach of conditions concerning driving
licence.".
5. There cannot be any dispute about the proposition of law that mere
prosecution of the driver under Section 3/181 of the Act will not be
sufficient to prove that the driver did not possess a valid driving licence.
The driver can always produce the licence during trial. Similarly, even
conviction of a driver under section 3/181 of the Act would only show
that the driver did not possess a valid and effective driving licence. That
by itself would not be sufficient to prove a willful breach of the
insurance policy on the part of the insured.
6. In the instant case the Appellant Insurance Company proved that
Respondent No.7 was prosecuted under Section 3/181 of the Act in
addition to the offence of causing death by rash and negligent driving by
proving the report under Section 173 Cr.P.C. (Ex.R3W1/A). The
Appellant Insurance Company did not stop there, it issued a notice dated
28.06.2010 Ex.R3W1/B sent to the owner to produce the driving licence
of the driver. The postal receipt was proved as Ex.R3W1/B. R3W1
Kishroe Kumar Mattoo filed an Affidavit Ex.R3W1/1 testifying all these
facts. Respondents No.7 and 8 (the driver and the owner) failed to file the
written statement despite sufficient opportunities and were proceeded ex-
parte vide order dated 09.03.2009. Thus, the testimony of R3W1
regarding prosecution of the driver under Section 3/181 of the Act and
regarding service of notice for production of the driving licence remained
unchallenged and unrebutted.
7. R3W1 proved the insurance policy Ex.R3W1/C containing the condition
that the Insurance Company would not be liable to pay the compensation
if a person driving the vehicle including insured did not hold an effective
driving licence at the time of the accident. Thus, the Insurance Company
did whatever was in its power to prove that there was willful and
conscious breach of the terms and conditions of the policy on the part of
the insured. Respondents No.7 and 8 as stated above preferred not to
contest the proceedings and were proceeded ex-parte.
8. In the circumstances, the Appellant successfully proved the breach of the
terms and conditions of the policy and was entitled to recover the
compensation from Respondents No.7 and 8, the driver and owner of the
offending vehicle.
9. 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."
10. Reliance on Swaran Singh by the Claims Tribunal is misplaced. Non
possession or invalidity of a driving licence may not be material where
the accident takes place when the vehicle is not being driven. For
instance, a stationary vehicle may catch fire resulting in injuries to the
passers by. In such circumstances only the Insurance Company would
not be permitted to raise plea of violation on account of non holding of a
licence by driver of the vehicle involved in the accident.
11. In view of the above discussion, the Appeal has to succeed. The same is
accordingly allowed.
12. The Appellant Insurance Company would be entitled to recover the
compensation from Respondents No.7 to 8 in execution of this very
judgment without having recourse to independent recovery proceedings.
13. The statutory deposit of `25,000/- be refunded to the Appellant Insurance
Company.
14. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
NOVEMBER 23, 2012
vk
