Delhi High Court
Icici Lombard General Insurance ... vs Avdesh Kumar & Ors on 12 January, 2015
Author: G.P. Mittal
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th January, 2015
+ MAC.APP. 163/2011
ICICI LOMBARD GENERAL INSURANCE CO LTD..... Appellant
Through: Mr. Pankaj Gupta, Adv. for
Ms. Suman Bagga, Adv.
versus
AVDESH KUMAR & ORS ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
1. This appeal is directed against the judgment dated 20.11.2011 passed
by the Motor Accident Claims Tribunal (the Claims Tribunal)
whereby compensation of Rs.25,571/- was awarded in favour of
Respondent No.1.
2. The only ground of challenge raised is that the Appellant successfully
proved the breach of the terms and conditions of the policy and
therefore, recovery rights ought to have been granted. In this
connection, it will be appropriate to refer to paras 16 and 17 of the
impugned judgment where the Claims Tribunal held as under:-
"16. The driver of the offending vehicle has produced
the driving licence to the police after the accident. The
insurance company after collecting this driving licence
submitted the same for verification. The driving licence
is Ex.R3W1/2. As per the report of the Licensing
Authority this driving licence has not been issued by their
office in the name of the driver Depak Kumar son of Sh.
Arun Kumar.
17. Admittedly, in the present case the driver of the
offending vehicle was in possession of a driving licence.
In order to avoid the responsibility the insurance
company has not only to show that the driving licence
produced by the driver of the offending vehicle is fake but
also to the effect that this fact was in the knowledge of
the insured and despite of which he permitted the driver
to drive a vehicle. The contract of the insurance is a
contract between the insured and insurance company.
Simply for the reason that DL produced by the driver of
the offending vehicle has been found fake does not mean
that owner/insured of the said vehicle was also aware of
this fact. The positive evidence on this point is the
responsibility of the insurance company to place on
record. The insurance company in the instant case has
only come up with half covered evidence on the point of
proving that DL is fake but that would not complete their
task to avoid responsibility unless and until they further
go on to prove that owner despite being alive to the fact
that the driver holding a fake licence permitted him to
drive the said vehicle. Serving of the notice under Order
12 Rule 8 CPC to the owner by the insurance company is
not considered to be sufficient. In order to discharge the
burden by the insurance company the insurance company
was still able to summon the owner as a witness in such a
fact situation. Since no such step has been taken by the
insurance company in the present case the responsibility
as such to be considered would continue with insurance
company alone. The plea of grant of recovery right is
also rejected for the same reason."
3. Admittedly, not only the Appellant Insurance Company proved that
the licence produced by the driver was found to be fake but a notice
under Order XII Rule 8 CPC was also issued to the owner to produce
the licence on the basis of which the driver was employed.
4. Failure to produce the driving licence in spite of the service of the
notice under Order XII Rule 8 CPC would be sufficient to draw an
inference that the driver did not possess a valid driving licence and
nothing further could have been done as the Appellant Insurance
Company would not have known the Licensing Authority or the place
from where the driving licence should have been obtained. If the
owner relied upon some other licence of the driver or had taken his
test, it was for the owner to have come forward and prove the same.
5. The case is squarely covered by the judgment of this Court in New
India Assurance Company Ltd. & Ors. v. Sanjay Kumar & Ors., ILR
2007(II) Delhi 733 where this Court held as under:-
"22. Thus, where the insurance company alleges that the
term of the policy of not entrusting the vehicle to a person
other than one possessing a valid driving licence has been
violated, initial onus is on the insurance company to prove
that the licence concerned was a fake licence or was not a
valid driving licence. This onus is capable of being easily
discharged by summoning the record of the Licensing
Authority and in relation thereto proving whether at all the
licence was issued by the authority concerned with reference
to the licence produced by the driver. Once this is
established, the onus shifts on to the assured i.e. the owner
of the vehicle who must then step into the witness box and
prove the circumstances under which he acted;
circumstances being of proof that he acted bona fide and
exercised due diligence and care. It would be enough for
the owner to establish that he saw the driving licence of the
driver when vehicle was entrusted to him and that the same
appeared to be a genuine licence. It would be enough for the
owner, to discharge the onus which has shifted on to his
shoulders, to establish that he tested the driving skill of the
driver and satisfied himself that the driver was fit to drive
the vehicle. Law does not require the owner to personally
go and verify the genuineness of the licence produced by the
driver.
23. Where the assured chooses to run away from the battle
i.e. fails to defend the allegation of having breached 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 the 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."
6. In view of this, in my view, the Appellant insurance company has
successfully proved breach of the terms and conditions of the policy.
7. In view of my judgment in Oriental Insurance Company Limited v.
Shanti & Ors., MAC APP.343/2009, decided on 02.07.2012, the
Appellant Insurance Company is entitled to recover compensation
paid to the Claimant in execution of this very judgment without
having recourse to independent proceedings for recovery.
8. The statutory amount of Rs.25,000/-, if any, shall be refunded to the
Appellant Insurance Company.
9. The Appeal is allowed in above terms.
10. Pending applications, if any, also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 12, 2015
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