Delhi High Court
National Insurance Co Ltd vs Rajbir Singh & Ors on 7 August, 2013
Author: Suresh Kait
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 7th August, 2013
+ MAC.APP. 667/2011
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. L.K. Tyagi, Adv.
versus
RAJBIR SINGH & ORS ..... Respondents
Through: Mr. Vikram Singh, Adv.
for R1 and R2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Instant appeal has been preferred against the award
dated 25.04.2011 on the ground that the driver of the offending
vehicle was having a fake licence, despite that the ld. Tribunal has not
granted recovery rights in favour of the appellant.
2. Ld. Counsel appearing on behalf of the appellant submits that
the appellant is not entitled to pay any compensation as the vehicle of
the insured was being driven by a person, who did not possess a valid
driving license.
3. The appellant examined Sh. Shyam Singh Bisht, Assistant,
National Insurance Company Ltd. as R3W1, who stated that notice
under Order 12 Rule 8 CPC was sent to the driver and owner of the
offending vehicle through Registered Post. Notice sent to the driver
received back with the report of refusal. The driving licence of the
driver was verified by their Investigator from Etah, U.P. and the same
was found to be fake. He proved the report of the Investigator and
insurance policy of the offending vehicle in question, which was valid
from 30.11.2006 to 29.11.2007.
4. Ld. Counsel for the appellant submits that both the driver and
owner were proceeded ex-parte before the trial court. Respondent no.
3 has been served. Despite that none appeared on behalf of the said
respondent. Respondent no. 4 has been served through citation, but
none appeared on behalf of the said respondent also.
5. On perusal of the record, it is revealed that appellant examined
one witness namely Shamu Singh Bisht, Assistant, National Insurance
Company Ltd. as R3W1. A notice under Order 12 Rule 8 of CPC has
been proved as Ex.R3W1/A. The postal receipt of which has been
proved as Ex.R3W1/B, AD card duly received by the owner has been
proved as Ex.R3W1/C. The Registered Envelop with Ambassador
Car bearing no. DL 7CC 5310 Card of driver was received back with
the remark of refusal and the same was proved as Ex.R3W1/D.
6. The driving licence of the driver was verified from Investigator
and was found to be fake. The report of its Investigator was proved as
Ex.R3W1/E-1 and Ex.R3W1/E-2. It is important to note that
testimony of R3W1 were unchallenged.
7. Counsel for the appellant has relied upon a case of National
Insurance Company Ltd. v. Geeta Bhat & Ors. 2008 ACJ 1498,
wherein the Apex Court has held as under:
"3. In the proceedings before the Motor Vehicles
Accident Claims Tribunal („the Tribunal‟), the insurance
company prayed for examination of the concerned clerk
of the Motor Vehicles Department. The said prayer was
allowed. The concerned Clerk of the Licencing Authority,
Alwar was summoned. The said summons were served in
the office of the Transport Authority. The Transport
Authority, however, did not depute any officer to produce
the documents called for.
Appellant, however, brought on records evidence to the
effect that on an investigation made by its own
investigator, it was found that no such licence had been
issued in the name of Gopal Singh, the driver of the
vehicle. In its report dated 20.3.2003, the said
investigator stated:
"Kindly, note that an application was moved by
us to the LA Alwar to issue the verification
certificate for the DL No. as cited above, along
with the photocopy of the DL received by us.
13. We would, therefore, assume that the licence
possessed by Gopal Singh, respondent no. 6, was a fake
one. Only because the same was fake, the same, having
regard to the settled legal position, as noticed
hereinbefore, would not absolve the insurer to reimburse
the owner of a vehicle in respect of the amount awarded
in favour of a third party by the Tribunal in exercise of
its jurisdiction under Section 166 of the Motor Vehicles
Act, 1988.
15. We, therefore, are of the opinion that interest of
justice shall be subserved if the appellant is directed to
pay the awarded amount in favour of respondent Nos.1 to
5 with liberty to recover the same from the owner and the
driver of the vehicle, respondent Nos.6 and 7 in an
appropriate proceeding in accordance with law."
8. In Oriental Insurance Co. v. Rakesh Kumar & Ors. 2012,
ACJ, 1268 this court in Para 44 observed as under:
ii. Even when there is willful breach of terms of the
policy under Section 149 (2) (a) of the Act, the insurance
company is under obligation to indemnify the liability
towards the third parties and thereafter recover the same
from the owner.
9. In view of the judicial dictum and the evidence on record, I am
of the view that ld. Tribunal has erred by not giving the recovery
rights to the appellant.
10. I, therefore, set aside the award dated 25.04.2011 to the extent
of not granting recovery rights in favour of the appellant.
Consequently, appellant shall be at liberty to recover the amount from
respondent no. 4, i.e., the owner of the offending vehicle.
11. In view of the above, instant appeal stands disposed of.
12. I note vide order dated 25.07.2011, appellant was directed to
deposit the entire award amount with interest to the Registrar General
of this Court. Vide order dated 18.05.2012, 50% of the deposited
award amount was directed to be released in favour of respondent nos.
1 & 2 / claimants.
13. Since the appeal has been disposed of, therefore, the Registrar
General of this Court is directed to release the balance compensation
amount in favour of the respondents / claimants on taking steps.
14. Statutory amount shall also be released in favour of the
appellant.
SURESH KAIT, J
AUGUST 07, 2013/Jg
