Delhi High Court
Oriental Insurance Company Ltd. vs Istkar & Ors. on 11 July, 2013
Author: Suresh Kait
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11th July, 2013
+ MAC.APP. No. 754/2010 & CM No. 20240/2010 (for stay)
ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate.
Versus
ISTKAR & ORS. ..... Respondents
Through: Ms. Sunanda Roy and Ms. Manjeet
Chawla, Advocates for Respondent
No.1.
Mr. Ashwani Tyagi, Advocate for
Respondent No.3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
MAC.APP. No. 754/2010
1. Vide the instant appeal, the appellant/Insurance Company has
challenged the award dated 17.07.2010, whereby the learned Tribunal has
granted the compensation in favour of the respondents/claimants as under:-
"a) Pain & suffering : Rs.10,000/-
b) Loss of amenities & disfigurement : Rs.25,000/-
c) Actual medical expenses : Rs. 768/-
d) Reasonable medical expenses in : Rs. 5,000/-
absence of bills
e) Loss in earning due to injury : Rs. 3200/-
(one month)
f) Loss in earning capacity due to : Rs.34,560/-
disability
g) Special diet + conveyance : Rs 5,000/-
_______________
Total = Rs.83,528/-
________________
The said total sum is rounded off to Rs.84,000/- which shall be the
just compensation."
2. Learned counsel appearing on behalf of the appellant/Insurance
Company has argued only on the ground that the driver of the offending
vehicle was having fake driving licence and it is a case of breach of the
terms of the policy, therefore, the appellant/Insurance Company is not liable
to pay any compensation. She further submitted that when there is a breach
of terms of policy, then they have to be exonerated fully and if not, the
appellant company should have been granted recovery rights against the
owner of the offending vehicle.
3. Learned counsel has submitted that the appellant/Insurance Company
has filed an application under Order XVI Rule 7A read with Section 151
CPC for calling witness from the concerned District Transport Office of
Motihari, Muzaffarpur, Bihar along with complete record of driving licence
No.716/98 in the name of Lal Saheb.
4. Thus, they tried their level best to call the witness, however, none
appeared from the said authority, therefore, they could not prove the fact that
the driver was having fake driving licence. In the eventuality, they had
placed the report on record from the said authority, the learned Tribunal
should have relied upon the report, wherein it is clearly mentioned that the
driving licence in question was fake and not issued in the name of Lal
Saheb, i.e., alleged driver of the offending vehicle.
5. On the other hand, learned counsel appearing on behalf of the
respondents/claimants submitted that the learned Tribunal had given
numerous opportunities to the appellant/Insurance Company despite that
they did not examine any witness from the concerned authority to prove the
fact that the driving licence of the driver was fake. Finally, on 26.05.2010,
as learned counsel for the appellant had stated before the learned Tribunal
that she would not lead any evidence, therefore, the evidence of the
appellant/Insurance Company was closed by the learned Tribunal.
6. On considering the documents and the evidence adduced by the
appellant/Insurance Company, it is recorded by the learned Tribunal that the
appellant being the Insurer admitted the policy but insisted for recovery
rights on the ground that the driving licence of the respondent No. 2 was
fake.
7. However, the appellant/Insurance Company did not lead any evidence
on this point which could prove that the driving licence of the driver was
fake. Moreover, they failed to summon any witness from the concerned
authority to prove this fact.
8. Learned Tribunal further recorded that there being no evidence of
violation of the policy condition and there being no evidence to support the
permitted defence under Section 149(2) of the M.V. Act, thus, the terms of
the policy deemed to be accepted.
9. Learned counsel for the respondents/claimants has relied upon a case
of National Insurance Co. Ltd. Vs. Swaran Singh & Ors., 2004 ACJ I
(SC) and submitted that onus is upon the Insurer to prove the violation of the
insurance policy, therefore, the appellant being the Insurer of the offending
vehicle is rightly held liable to pay compensation.
10. The Apex Court in Swaran Singh (supra) has held as under:-
"60. In MacGillivray on Insurance Law it is stated:
"25-82 Burdenof Proof: Difficulties may arise in
connection with the burden of proving that the facts of
any particular case fall within this exception. The
usual rule is that once the assured has proved that the
case comes within the general risk, it is for the
insurers to prove that it comes within an exception. It
has therefore been suggested in some American
decisions that, where the insurers prove only that the
assured exposed himself to danger and there is no
evidence to show why he did so, they cannot succeed,
because they have not proved that this behavior was
voluntary or that the danger was unnecessary. Since
an extremely heavy burden is imposed on the insurers
if they have to prove the state of mind of the assured,
it has been suggested in Canadian decisions that the
court should presume that the assured acted
voluntarily and that, where he does an apparently
dangerous and foolish act, such danger was
unnecessary, until the contrary is shown. In practical
terms, therefore, the onus does in fact lie on the
claimant to explain the conduct of the assured where
there is not apparent reason for exposing himself to
an obvious danger."
61. In Rukmani and Ors. v. New India Assurance Co. Ltd. and
Ors. : (1998)9SCC160 , this Court while upholding the defences
available to the insurer to the effect that vehicle in question was
not being driven by a person holding a licence, held that the
burden of the insurer would not be discharged when the evidence
which was brought on record was that the Inspector of Police in
his examination in chief merely stated, "My enquiry revealed that
the respondent No. 1 did not produce the licence to drive the
abovesaid scooter. The respondent No. 1 even after my demand did
not submit the licence since he was not having it.
62. The proposition of law is no longer res integra that the
person who alleges breach must prove the same. The insurance
company is, thus, required to establish the said breach by cogent
evidence. In the event, the insurance company fails to prove that
there has been breach of conditions of policy on the part of the
insured, the insurance company cannot be absolved of its liability,
(See Sohan Lal Passi (supra)
63. Apart from The above, we do not intend to lay down
anything further i.e. degree of proof which would satisfy the above
mentioned requirement inasmuch as the same would indisputably
depend upon the facts and circumstances of each case. It will also
depend upon the terms of contract of insurance. Each case may
pose different problem which must be resolved having to a large
number of factors governing the case including conduct of parties
as regard duty to inform, correct disclosure, suppression, fraud on
the insurer etc. It will also depend upon the fact as to who is the
owner of the vehicle and the circumstances in which the vehicle
was being driven by a person having no valid and effective licence.
No hard and fast rule can therefore be laid down. If in a given case
there exists sufficient material to draw an adverse inference
against either the insurer or the insured, the Tribunal may do so.
The parties alleging breach must be held to have succeeded in
establishing the breach of conditions of contract of insurance on
the part of the insurer by discharging its burden of proof. The
Tribunal, there cannot be any doubt, must arrive at a finding on
the basis of the materials available on records."
11. Admittedly, the appellant/Insurance Company did not examine any of
the witness, thus the issue of the fake driving licence has not been
established. Therefore, the appellant is neither entitled to be exonerated
from any liability nor entitled for any recovery rights. Hence, the learned
Tribunal has rightly fastened the liability on the appellant/Insurance
Company.
12. Moreover, no application has been moved before this Court for
leading additional evidence to prove the fact that the driving licence issued
to respondent No. 2 was fake. Therefore, in view of the above, I do not find
any discrepancy in the award passed by the learned Tribunal.
13. Pursuant to order dated 16.11.2010, the entire awarded amount along
with upto date interest has been deposited with the Registrar General of this
Court. Vide order dated 23.04.2012, 50% of the awarded amount was
directed to be released in favour of the respondent No.1/claimant.
14. Accordingly, the Registrar General of this Court is directed to release
the balance amount with upto date interest accrued thereon in favour of the
respondent No.1/claimant in terms of the award dated 17.07.2010 passed by
the learned Tribunal.
15. Needless to state that if the aforesaid 50% of the awarded amount
directed to be released by this Court vide order dated 23.04.2012 has not
been released, the said amount shall be released with interest accrued
thereon and rest of the amount shall be released in terms of order dated
17.07.2010, as aforesaid.
16. The appeal is dismissed with no order as to costs.
17. The Registry of this Court is directed to refund the statutory amount in
favour of the appellant/Insurance Company.
CM No. 20240/2010 (for stay)
With the dismissal of the appeal itself, the instant application has
become infructuous. The same is disposed of accordingly.
SURESH KAIT, J.
JULY 11, 2013
sb
