Delhi High Court
National Insurance Company Ltd. vs Smt. Nirmala @ Nirmal & Ors. on 11 February, 2015
Author: G.P. Mittal
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th February, 2015
+ MAC.APP.895/2006
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Adv.
versus
SMT. NIRMALA @ NIRMAL & ORS. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. This appeal is against the judgment dated 19.08.2006 passed by the
Motor Accident Claims Tribunal (the Claims Tribunal) whereby the
Appellant National Insurance Company was made liable to pay the
compensation of Rs.2,75,000/- to Respondents no.1 and 2 (the
Claimants) for the death of a minor child of ten years, who succumbed
to the fatal injuries caused in a motor vehicular accident which
occurred on 22.09.2002.
2. The only ground raised by the learned counsel for the Appellant is that
although the accident was caused by the insured vehicle, a tractor
bearing registration no.RJ-21-R-9067, yet its driver and owner
Chiranji Lal did not possess a valid and effective licence to drive a
tractor. Therefore, even if the Appellant Insurance Company was not
exonerated at least recovery rights ought to have been granted to it
against Respondent no.3.
3. Learned counsel for the Appellant had taken me through the evidence
of R3W1 Harish Chander, Administrative Officer of the Insurance
Company who testified that the drive of the offending vehicle
involved in the accident, i.e. the tractor possessed a valid licence to
drive a motorcycle and HTV. However, the licence was not issued for
a tractor. Hence, the driver did not possess a licence to drive a tractor.
4. Similarly, Insurance Company produced R3W2 Purshotam Yadav,
LDC, Transport Authority, West Zone who stated that the holder of
Driving Licence no.C04062001255457 was not entitled to drive a
tractor as the licence was not valid to drive the tractor.
5. It is true that if the Insurance Company proves that there is willful and
conscious breach of the terms and conditions of the insurance policy,
it will be liable to recover the compensation paid to discharge its
statutory liability from the insured. However, in the instant case, in the
written statement filed by Respondent no.3 (Respondent no.1 before
the Claims Tribunal), a specific plea was taken by Respondent no.3
that the accident was not caused by his rash and negligent driving. In
para 23(2) another specific plea was taken that the vehicle which is
involved in the case is insured with the Appellant Insurance Company
and it would be liable to pay the compensation, if any, which is proved
by the legal representatives of deceased Raju.
6. In the written statement filed by the Appellant no specific plea was
taken that Respondent no.3 did not possess a valid licence to drive a
tractor or that the licence was valid only to drive a motor cycle or
HTV.
7. No notice under Order XII Rule 8 of the Code of Civil Procedure,
1908 was served upon Respondent no.3 to produce any endorsement
or any licence to drive the tractor.
8. In view of this, the Appellant failed to prove that there was any willful
or conscious breach of the terms and conditions of the insurance
policy on the part of the insured.
9. The appeal therefore, has to fail; the same is accordingly dismissed.
10. Statutory amount, if any, shall be refunded to the Appellant Insurance
Company.
(G.P. MITTAL)
JUDGE
FEBRUARY 11, 2015
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