Oriental Insurance Co. Ltd vs Anil Kumar Jha & Ors
2012 Latest Caselaw 5280 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Decided on: 4th September, 2012
+       MAC.APP. 516/2005


        ORIENTAL INSURANCE CO. LTD.      ..... Appellant
                     Through: Mr.Tarkeshwar Nath, Advocate

                      versus

        ANIL KUMAR JHA & ORS.                      ..... Respondents
                     Through: None.

        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

1. This Appeal is directed against a judgment dated 29.11.2004 passed by the Motor Accident Claims Tribunal whereby the Claims Tribunal awarded a compensation of ` 2,60,000/- in favour of the Claimants for the death of Ranju Devi who died in a motor vehicle accident which occurred on 21.07.1999.

2. The sole contention raised at the time of the hearing of Appeal is that the Appellant/Insurance Company successfully proved the breach of the terms of the policy; thus the Appellant was entitled to recovery rights against the owner and the driver of the offending vehicle (Respondents No. 4 and 5 herein).

3. Respondent No. 5 driver of TSR bearing No. DL-1R 2493 was challaned for an offence punishable u/s 279/304A IPC for causing death by rash and

negligent driving. He was also challaned for an offence punishable u/s 3 r/w 181 of the Motor Vehicles Act. The Claims Tribunal held that prosecution of the driver was not sufficient to hold that the driver did not possess a driving licence at the time of the accident.

4. A driving licence No. 66895 dated 08.06.1999 was produced during pendency of this Appeal. By an order dated 02.12.2009 this Court directed the Appellant/Insurance Company to verify the genuineness of the driving licence. The report submitted by the Appellant/Insurance Company shows that this driving licence was not issued by the Licensing Authority, Karnal. An endorsement from the Licensing Authority on the application dated 03.03.2010 has also been submitted along with the report. The driver/his counsel have not come forward to challenge this report.

5. I have before me testimony of R3W1 Uma Kant, Assistant Divisional Manager, Oriental Insurance Company. Apart from proving the charge-sheet Ex.R3W1/1, whereby Respondent No.4 was prosecuted for an offence u/s 3/181 of the Act for not holding a driving licence at the time of the accident, proved notice under Order XII Rule 8 CPC (Ex.R3W1/3) which was served upon Respondents No. 4 and 5 (driver and the owner). The postal receipts and the UPC were also duly proved. R3W1's testimony was not challenged in cross-examination by Respondents No. 4 and 5. The Appellant/Insurance Company did whatever was in its power to prove that the insured committed willful breach of the terms of the policy. The insured on the other hand, preferred not to respond to the notice Ex.R3W1/3 and to contest the proceedings. The onus, in the circumstances, shifted on the insured to prove that he had taken all the steps to ensure that the vehicle is not driven by a person not possessing a valid driving licence. Since, the Appellant/Insurance

Company successfully proved the breach of the terms of policy, it was entitled to recovery rights on the basis of the judgment in Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; New India Assurance Co., Shimla v. Kamla and Ors., (2001) 4 SCC 342 and United India Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338.

6. I am also supported in this view by a judgment of the learned Single Judge of this Court in New India Assurance Co. Ltd. v. Sanjay Kumar and Ors., ILR 2007(II) Delhi 733, where 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 breached 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."

7. In view of the above discussion, the Appeal has to be allowed.

8. I order accordingly. The Appellant shall be entitled to recover the amount of compensation paid to the Claimants from Respondents No. 4 and 5.

9. The Appeal is allowed in above terms.

10. The statutory amount, if any, shall be released to the Appellant.

11. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 04, 2012 mr