Delhi High Court
Oriental Insurance Co Ltd. vs Bijender Singh & Ors. on 10 April, 2015
Author: G.P. Mittal
$-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th April, 2015
+ MAC.APP. 492/2010
ORIENTAL INSURANCE CO LTD. .... Appellant
Through: Mr.Pradeep Gaur, Advocate.
versus
BIJENDER SINGH & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. The Appellant Oriental Insurance Company Limited seeks rights
to recover the compensation paid in pursuance of the judgment
dated 06.05.2010 passed by the Motor Accident Claims Tribunal
(the Claims Tribunal) from the insured.
2. The ground set up by the Appellant is that it successfully proved
willful and conscious breach of the terms and conditions of the
insurance policy but in spite of this, it was not only made liable
to pay the compensation but even no recovery rights were
granted.
3. While dealing with the issue of liability, the Claims Tribunal
held as under:-
"15. The Insurance Company had taken a plea
that the driver of the offending vehicle was not
carrying licence at all. It has drawn the attention
of the court towards the certified copies of the
chargesheet which carries prosecution of the
driver for the offence u/s. 3/181. I have heard the
insurance company at length on this point.
16. Though the charge-sheet which have been
filed contains the prosecution of driver for the
offence u/s. 3/181 M.V. Act as is clear from the
certified copies of the criminal record, but the
filing of the charge sheet under Section 3/181 is
not enough. It was held by Hon'ble High Court of
Delhi in Oriental Insurance Company vs. Sonia,
158 (2009) Delhi Law Times 111, that mere filing
of the challan in a criminal court under Section
3/181 is not enough. There should be evidence on
record to show that in fact the driver of the
offending vehicle was convicted under Section
3/181 Motor Vehicles act.
17. In these circumstances, in view of aforesaid
case law the plea of insurance company stands
rejected."
4. I have the Trial Court record before me. Not only was the driver
prosecuted for an offence punishable under Section 3 read with
Section 181 of the Motor Vehicles Act, 1988 (the Act) but also
notice under Order XII rule 8 CPC (Ex.R3W1/2) was duly
served by the insurance company upon the insured to produce
the insurance policy and a valid driving licence of the driver.
5. The Insurance Company could not have done anything better
than proving the challan for the offence punishable under
Section 3 read with Section 181 of the Act and serve a notice
under Order XII Rule 8 CPC upon the insured to produce a valid
driving licence of the driver.
6. Thus, in my view, the Appellant Insurance Company did
whatever was in its power to prove that there was conscious and
willful breach of the terms and conditions of the insurance
policy. The onus thereafter shifted upon the owner to prove the
circumstances under which the driver was engaged and whether
he had taken sufficient precautions not to commit breach of the
terms and conditions of the policy. In this connection, a
reference may be made to the judgment of this Court in New
India Assurance Company Ltd. v. Sanjay Kumar & Ors., ILR
(2007) 11 Delhi 733, wherein 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 breach 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 be 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. The Appellant therefore, has proved that there was willful and
conscious breach of the terms and conditions of the insurance
policy. Although in view of the judgments of the Supreme Court
in Sohan Lal Passi v. Sesh Reddy, (1996) 5 SCC 21; National
Insurance Company Limited v. Swaran Singh & Ors. (2004) 3
SCC 297 and United India Insurance Company Ltd. v. Lehru &
Ors., (2003) 3 SCC 338, the Appellant was under obligation to
satisfy third party liability, but at the same time, the Appellant is
entitled to recovery rights from the owner of the offending
vehicle.
8. The appeal is consequently allowed. It is directed that the
Appellant will be entitled to recover the amount of compensation
paid along with interest from Respondent no.2 (owner).
Respondent no.2 shall deposit the compensation paid by the
Appellant with the Claims Tribunal with a notice to the
Appellant within eight weeks, failing which the Appellant shall
be entitled interest @ 9% per annum from the date of
deposit/payment made by the Appellant.
9. The Appellant shall be entitled to recover the amount in
execution of this very judgment without having recourse to
independent civil proceedings.
12. The appeal is allowed in above terms.
13. Pending applications also stand disposed of.
14. Statutory amount, if any, deposited shall be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
APRIL 10, 2015/vk
