Delhi High Court
M/S National Insurance Co Ltd vs Lalit Kumar & Ors. on 26 February, 2015
Author: G.P. Mittal
$-1 to 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 26th February, 2015
+ MAC.APP. 575/2006
M/S NATIONAL INSURANCE CO. LTD. ..... Appellant
Through : Ms. Sonia Sharma, Advocate.
versus
MASTER RAVI KUMAR & ORS. ..... Respondent
Through : None.
+ MAC.APP. 619/2006
M/S NATIONAL INSURANCE CO LTD ..... Appellant
Through : Ms. Sonia Sharma, Advocate.
versus
LALIT KUMAR & ORS. ..... Respondent
Through : None.
+ MAC.APP. 577/2006
M/S NATIONAL INSURANCE CO LTD ..... Appellant
Through : Ms. Sonia Sharma, Advocate.
versus
ANIL KUMAR & ORS ..... Respondent
Through : None.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CM APPL. 16034/2013 IN MAC.APP. 575/2006
CM APPL. 16032/2013 IN MAC.APP. 619/2006
CM APPL. 16033/2013 IN MAC.APP. 577/2006
For the reasons stated in the applications, the appeals are
restored to their original numbers.
The applications stand disposed of.
MAC APPs. 575/2006, 619/2006 & 577/2006
1. The only ground of challenge raised by the Appellant/New
India Insurance Company in these three appeals is that although the
Insurance Company successfully proved conscious and willful breach
of the terms and conditions of the insurance policy, yet neither the
Insurance Company was exonerated nor recovery rights were granted
to it.
2. The learned counsel for the Appellant has taken me through the
testimony of R3W1/Mr. K.K. Sharma, Assistant with the Appellant
company and R3W1/Mr. Nityanand Mishra, Clerk, RTO Office,
Kuttack. R3W1 simply deposed that a notice under Order 12 Rule 8
CPC was served upon the owner and driver to produce the insurance
policy and the driving licence of the driver but the said notice was
received back unserved. Ex.R1 was produced to prove that as per the
record maintained in the office of RTO, Kuttack., endorsement to
drive an HGV was made on the driver's license on 26.12.1998. The
learned counsel urges that in the instant case, the accident had taken
place on 13.06.1998 but, the endorsement for HGV was made only in
December, 1998. Thus, the Appellant amply proved that the driver did
not possess a valid driving license to drive the class of vehicle which
was involved in the accident on the date of accident. It is urged by the
learned counsel that whatever was in its power to prove that there was
conscious and willful breach of the terms and conditions of the
insurance policy by the insured was done by it before the Tribunal.
3. The Claims Tribunal dealt with the issue of liability in para 20
of the impugned judgment which is extracted herein below:-
"20. LIABILITY
It is submitted by Ld. Counsel for insurance company
that the insurance company is not liable to satisfy the
award as R1 was not driving the the offending vehicle
with a valid driving license. He was driving HMV
although he had a license to drive LMV. It is proved from
the statement of R3W1 that at the time of the accident, R1
was having license to drive LMV only. The accident took
place on 15.5.98 and he got the license to drive HGV
w.e.f. 26.12.98. Now, the question is whether the
insurance company has proved that there was any wilful
breach on the part of insured. It is nowher pleaded in the
written statement by the insurance company that R1 was
having license to drive LMV whereas the owner has
permitted him to drive HGV and thereby committed
wilful breach of terms and conditions of the policy. The
notice was sent to R1 nd R2 to produce the original
policy and the driving license. These notices were not
served. The owner was never examined to prove that
there was wilful breach on his part."
4. It is important to note that in the written statement filed by the
Appellant/Insurance Company, a vague and general plea regarding the
same was taken which is extracted hereunder:-
"2.That the contract of insurance is a contract of
indemnity and if the insured wants to take benefit of
contract of insurance, then he will have to prove that his
vehicle was insured on the day of the alleged accident
and that he has not committed any breach of terms and
conditions of the insurance policy and that the vehicle at
the relevant time was being driven by the persons who
was holding a valid and effective driving license. In case
the insured fails to prove the above, then no liability can
be fastened on the answering respondent and the petition
against the answering respondent will be liable to be
dismissed."
5. The driver and the owner also contested the claim petition and
admitted the averments made in para 17 of the Petition that the vehicle
was insured with the National Insurance Company Limited vide
Certificate No. 153104/6700058/98-99 valid from 14-4-98 to 13-4-99.
At the same time, the driver and the owner disputed that the accident
was caused because of the rash and negligent driving of the insured
vehicle by the driver. It is not known as to when the
Appellant/Insurance Company came to know that the driver did not
possess a valid driving license. The written statement filed by the
Appellant/Insurance Company was never amended and it was only in
the year 2005 (i.e. 7 years after the accident) that it was sought to be
proved that the driver did not possess a valid driving license on the
date of the accident. The notice to produce the driving licence was
also not served upon the driver and the owner.
6. In my view, the Claims Tribunal rightly held that the Appellant
failed to prove the conscious and wilful breach of the terms and
conditions of the insurance policy. Consequently, recovery rights were
rightly declined to the Appellant.
7. The appeals therefore, have to fail, the same are accordingly
dismissed. Pending applications also stand disposed of.
G.P. MITTAL, J
FEBRUARY 26, 2015
j
