Delhi High Court
National Insurance Company Ltd. vs Smt. Shakuntala & Ors. on 30 October, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th October, 2012
+ MAC. APP. 369/2005
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Pradeep Gaur Adv. with
Mr. Amit Gaur, Adv.
versus
SMT. SHAKUNTALA & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. This Appeal is directed against a judgment dated 30.11.2004 passed by
the Motor Accident Claims Tribunal (the Claims Tribunal) whereby
while awarding a compensation of `3,38,980/- in favour of Respondents
No.1 to 8, the Appellant Insurance Company was made liable to pay the
compensation and its plea of exoneration or even grant of recovery rights
was rejected.
2. While admitting the Appeal on 06.03.2009, notice to Respondents No.1
to 8 (the Claimants) was discharged and the Appeal was admitted qua
Respondents No.9 and 10, that is, the driver and owner of the offending
vehicle.
3. It is urged by the learned counsel for the Appellant that from the
verification report Ex.R3W1/B and from the copy of the statement of
Sunil Ex.R3W1/C it was established that the offending vehicle, i.e. Jeep
No.HR-24E-4624 was being run for hire or reward. Thus, it was
established that there was breach of the terms and conditions of the policy
on the part of the insured. The amount of compensation having already
been paid to the Claimants, the Appellant Insurance Company is entitled
to recovery rights.
4. It is no longer res integra that the initial onus is on the insurer to prove
that there is breach of the terms and conditions of the policy.
5. In Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; the three Judge
Bench decision of the Supreme Court while referring to Section 96 (2) (b)
(ii) of the Motor Vehicles Act, 1939 held that this Section cannot be
interpreted in a technical manner. Section 96 (2) (b) (ii) only enables the
Insurance Company to defend the liability to pay the compensation on the
grounds mentioned in sub-section (2) including that there has been a
contravention of the condition excluding the vehicle being driven by any
person who is not duly licensed. It was held that if the person who has got
the vehicle insured has allowed the vehicle to be driven by a person who
is not duly licensed then only that clause shall be attracted. The Supreme
Court held that the insurer has to satisfy the Tribunal that such violation
or infringement on the part of the insured was willful. The relevant part of
the report is extracted hereunder:-
"12. .......According to us, Section 96(2)(b)(ii) should not be
interpreted in a technical manner. Sub-section (2) of Section 96
only enables the insurance company to defend itself in respect of
the liability to pay compensation on any of the grounds mentioned
in sub-section (2) including that there has been a contravention of
the condition excluding the vehicle being driven by any person who
is not duly licensed. This bar on the face of it operates on the
person insured. If the person who has got the vehicle insured has
allowed the vehicle to be driven by a person who is not duly
licensed then only that clause shall be attracted. In a case where
the person who has got insured the vehicle with the insurance
company, has appointed a duly licensed driver and if the accident
takes place when the vehicle is being driven by a person not duly
licensed on the basis of the authority of the driver duly authorised
to drive the vehicle whether the insurance company in that event
shall be absolved from its liability? The expression „breach‟
occurring in Section 96(2)(b) means infringement or violation of a
promise or obligation. As such the insurance company will have to
establish that the insured was guilty of an infringement or violation
of a promise. The insurer has also to satisfy the Tribunal or the
Court that such violation or infringement on the part of the insured
was wilful. If the insured has taken all precautions by appointing a
duly licensed driver to drive the vehicle in question and it has not
been established that it was the insured who allowed the vehicle to
be driven by a person not duly licensed, then the insurance
company cannot repudiate its statutory liability under sub-section
(1) of Section 96. In the present case far from establishing that it
was the appellant who had allowed Rajinder Pal Singh to drive the
vehicle when the accident took place, there is not even any
allegation that it was the appellant who was guilty of violating the
condition that the vehicle shall not be driven by a person not duly
licensed. From the facts of the case, it appears that the appellant
had done everything within his power inasmuch as he has engaged
a licensed driver Gurbachan Singh and had placed the vehicle in
his charge. While interpreting the contract of insurance, the
tribunals and courts have to be conscious of the fact that right to
claim compensation by heirs and legal representatives of the
victims of the accident is not defeated on technical grounds. Unless
it is established on the materials on record that it was the insured
who had wilfully violated the condition of the policy by allowing a
person not duly licensed to drive the vehicle when the accident
took place, the insurer shall be deemed to be a judgment-debtor in
respect of the liability in view of sub-section (1) of Section 96 of
the Act......."
6. Similarly, in National Insurance Company Limited v. Swaran Singh &
Ors., (2004) 3 SCC 297, the Supreme Court observed that in order to
avoid its liability it is not sufficient for insurer to show that the person
driving at the time of the accident was not duly licensed but it must
further be established that there was breach on the part of the insured.
7. Turning to the facts of the instant case, the Appellant was content to
examine one Mr. Anand, Assistant in its Divisional Office, 22 Karol
Bagh, New Delhi who tried to prove the report Ex.R3W1/B and the
statement Ex.R3W1/C purported to be made by Sunil. The statement of
Mr. Anand (R3W1) to prove the breach of terms and conditions of the
policy, that is, the vehicle No.HR-24E-4624 was being run for hire and
award was completely valueless.
8. The question of proof of a Sanction Order signed by the Sanctioning
Authority i.e. Secretary (Medical) Delhi Administration came up before
this Court in State (Delhi Administration) v. Brij Mohan, 27 (1985) DLT
322 where it was held as under:-
"(8) Section 61 of the Evidence Act lays down that the
contents of a document may be proved either by primary or
by secondary evidence. Section 62 thereof defines primary
evidence as meaning the document itself produced for the
inspection of the court. In other words, the primary
documentary evidence of a transaction (evidenced by
writing) is the document itself which should be produced in
original to prove the terms of the contract/ transaction, if it
exists and is obtainable. Since the original sanction was
admittedly placed on record by the prosecution, the
requirements of this provision stood satisfied and the
question of any secondary evidence for proving the contents
of the sanction as such did not arise. Primary evidence in
the context of oral evidence, however, means an oral
account of the original evidence i.e. of a person who saw
what happened and gives an account of it recorded by the
court. That question does not appear to have arisen in the
instant case because the matter was still at the stage of proof
of the consent accorded by the Secretary (Medical). Since
Sections 61 to 66 of the Evidence Act deal with the mode of
proving the contents of the documents, either by primary
evidence or by secondary evidence, I need not dwell upon
the same in view of the original document having been
placed on the record.
(9) Then comes the most important question viz. the
genuineness of a document produced in evidence i.e. is a
document what it purports to be and this is dealt with in
Sections 67 to 73 of the Evidence Act. Section 67 refers to
documents other than documents required by law to be
attested. It simply requires that the signature of the person
alleged to have signed a document (i.e. the executant) must
be proved by evidence that the signature purporting to that
of the executant is in his handwriting. Further it requires
that if the body of the document purports to be in the hand-
writing of someone, it must be proved to be in the hand-
writing of that person. However, Section 67 does not in
terms prescribe any particular mode of proof and any
recognised mode of proof which satisfies the Judge will do.
Thus, the execution/ authorship of a document may be
proved by direct evidence i e. by the writer or a person who
saw the document written and signed or by circumstantial
evidence which may be of various kinds, for example, by an
expert or by the opinion of a non-expert who is acquainted
with the hand-writing in any of the ways mentioned in
Explanation to Section 47 or even by comparison etc. (See
Sections 45, 47, 73 & 90 of the Evidence Act)......"
9. In the instant case not only that the investigator was not produced, the
statement of Sunil son of Late Shir Fakir Chand (the deceased), could
have been proved only by examining him as a witness or by producing
any other direct evidence to prove that the vehicle was being run for hire
and reward. The opinion of the investigator proved through the Assistant
of the Appellant Insurance Company was not sufficient to prove that the
vehicle was being run for hire and reward and consequently there was
breach of the terms and conditions of the policy.
10. The Appeal, therefore, has to fail; the same is accordingly dismissed.
11. The statutory deposit of `25,000/- shall be refunded to the Appellant
Insurance Company.
12. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
OCTOBER 30, 2012
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