National Insurance Company Ltd. vs Durgesh And Ors.
2013 Latest Caselaw 4279 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                 Judgment delivered on:19th September, 2013

+                                 MAC.APP. 289/2011
       NATIONAL INSURANCE COMPANY LTD.                         ..... Appellant
                           Through:      Ms. Neerja Sachdeva, Advocate.
                           Versus
       DURGESH AND ORS.                                      ..... Respondents
                           Through:      Mr.Sanjeev Srivastava, Advocate for
                                         Respondent Nos. 1 to 5.
                                         Mr. Mohit Gupta, Advocate for
                                         Respondent No.6.


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is preferred against the impugned award dated 06.01.2011, whereby the learned Tribunal has granted a total compensation of Rs.24,63,600/- with interest at the rate of 7.5% per annum from the date of filing of the petition till realization of the amount.

2. Learned counsel appearing on behalf of the appellant/Insurance Company has argued that the appellant/Insurance Company has examined its Senior Assistant as R2W1; and proved the DL verification report in respect of the driving licence of respondent No.6 as Ex.R2W1/2, notice under Order

XII Rule 8 CPC as Ex.R2W1/3, postal receipts as Ex.R2W1/4 and the AD card of the same as Ex.R2W1/5. He has further stated that the DL was fake, therefore, the Insurance Company is not liable to pay any amount.

3. Learned counsel has submitted that they have filed two applications dated 20.03.2010 and 16.04.2010 before the learned Tribunal seeking dasti summon against the Licensing Authority, Meerut, which were duly served upon the said Authority, however, none appeared on their behalf. Therefore, the appellant has taken proper steps for summoning the concerned person from the licensing authority. However, no one appeared from the authority in response to the summons. Therefore, the appellants are not responsible for the non-compliance of the orders passed by the Ld. Tribunal.

4. To strengthen her arguments, learned counsel for the appellant/Insurance Company has relied upon a case of National Insurance Company Limited Vs. Geeta Bhat & Ors., (2008) 12 SCC 426, wherein the Apex Court has held as under:-

"3. In the proceedings before the Motor Vehicles Accident Claims Tribunal (the Tribunal), it 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. The appellant, however, brought on record 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.

xxxx xxxx xxxx

14. We would, therefore, assume that the licence possessed by the 6th respondent, Gopal Singh 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."

5. On the other hand, learned counsel appearing on behalf of the respondent No.6/driver of the offending vehicle has deposed that respondent No.6/driver has examined himself as R1W1 and stated that he had a valid DL at the time of the accident which was issued by the Licensing Authority, Meerut. In the cross-examination, he deposed that he had not placed on record the copy of his DL as it was seized by the police. Further stated that he obtained the licence from Meerut Licensing Authority after giving the test. Learner's licence was not issued to him and he was informed by the said Authority to obtain the licence.

6. Learned counsel further submitted that no witness was examined by the Insurance Company from the Licensing Authority, Meerut, despite two dasti orders, i.e., 20.03.2010 and 16.04.2010 for summoning the aforesaid witness, have been obtained from the court; and they failed to serve the summons upon the said Authority.

7. He submitted that for argument's sake if it is assumed that the service was effected upon the said Authority, then thereafter, no steps were taken by the Insurance Company to get either bailable warrants or non-bailable

warrants issued against the defaulting officials of the said Authority. Moreover, vide order dated 21.07.2010, the Insurance Company's right to lead evidence was closed. He also submitted that since passing of the award, i.e., on 06.01.2011, the aforenoted order dated 21.07.2010 closing RE was not challenged by the Insurance Company, therefore, the same has attained finality.

8. Admittedly, in the cross-examination, R2W1, Senior Assistant has stated that he had no personal knowledge of Ex.R2W1/2, i.e., verification report of the driving licence of respondent No.6 as he had not personally verified the facts of the aforesaid exhibit. Moreover, neither the Investigator was examined nor any report received from the Licensing Authority, Meerut was placed on record and the RE was closed vide order dated 21.07.2010, which order has attained finality being not challenged.

9. Despite two dasti orders being issued for summoning the witness from the Licensing Authority, Meerut, the appellant/Insurance Company failed to serve the same and get further orders against the defaulting official of that Authority. If the appellant/Insurance Company had taken appropriate steps which were under their control and were successful in proving that the DL of the respondent No. 6 was fake by placing on record some documents, then, in that eventuality no fault can be attributed to the Insurance Company. But in the present case, the appellant/Insurance Company neither took proper steps before the learned Tribunal nor moved any application before this Court for leading additional evidence to prove that driving licence was fake.

10. In view of the above discussion, I do not find any merit in the instant appeal. The same is dismissed but with no order as to costs.

11. Consequently, the Registrar General of this Court is directed to release the balance compensation amount in favour of the respondents/claimants as per the terms and conditions fixed by the learned Tribunal vide impugned order dated 06.01.2011.

12. Statutory deposit of Rs.25,000/- be released in favour of the appellant/Insurance Company.

SURESH KAIT, J.

SEPTEMBER 19, 2013 Sb/RS