Delhi High Court
Oriental Insurance Co. Ltd. vs Kunal Sadh & Ors. on 8 January, 2015
Author: G.P. Mittal
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 08th January, 2015
+ MAC. APP. No.934/2013
ORIENTAL INSURANCE CO. LTD.
..... Appellant
Through: Mr. L.K. Tyagi, Advocate
Versus
KUNAL SADH & ORS. .....Respondents
Through: Mr. Brijesh Oberoi, Advocate with Ms.
Lakshana Oberoi, Advocate & Ms.
Priyanka Kamal, Advocate for
Respondents no.1 to 5.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant has impugned the judgment dated 21.08.2013 passed by
the Motor Accident Claims Tribunal(the Claims Tribunal) whereby
compensation of Rs.32,62,536/- along with interest @ 7.5% per annum
was awarded in favour of Respondents no.1 to 5/claimants for death of
Subodh Kumar Sadh, who died in a motor vehicular accident which
occurred on 19.06.2009 at 5:30 a.m. on Shikohpur Mor, Gurgaon on
Delhi Jaipur Highway.
2. Although in the appeal, the quantum of compensation awarded has been
disputed, but at the time of hearing, the learned counsel for the Appellant
only presses for grant of recovery rights against the owner and driver i.e.
Respondents no.6 and 7. Respondent no.7 preferred not to contest the
proceedings despite service and appeared on 20.01.2014 and Respondent
no.6 preferred not to contest the proceedings despite service through
publication in Dainik Hindustan Mathura Edition.
3. The learned counsel for the Appellant urges that the Appellant did prove
willful breach of terms and conditions of the policy on the part of the
owner by examining the Clerk, ARTO Office, Mathura, UP. and proving
that the licence issued in favour of the driver, Respondent no.6 was fake,
yet recovery rights were not granted to it solely on the ground that no
notice was issued by the Appellant Insurance Company to the driver
telling him that the licence held by him was found to be fake. It is urged
by the learned counsel for the Appellant that it was not expected or
required from the Appellant (Insurance Company) to have intimated the
driver that the licence held by him was fake. It is further urged that the
Appellant was only obliged to prove that the licence held by the driver
was fake and then it was for the owner to have established that he had
taken appropriate steps to hand over the vehicle only to a person who
possessed a valid licence. In support of his contention, the learned
counsel for the Appellant relies on an order of this Court in Subhash
Jindal v. Asha Kumar & Ors., FAO No.589/2002 decided on 21.10.2005.
Paras 3 to 9 of the order are extracted hereunder:
"3. Insurance Company successfully established at the trial that
the license held by the driver engaged by the appellant to drive
the vehicle was a forged and fabricated license and was not
issued by the Licensing Authority from where it was purported
to have been issued.
4. In view of the said evidence, learned Tribunal directed that
on the Insurance Company paying the claimants they would
have their right to recover the awarded sum from the appellant.
5. Counsel for the appellant contends that onus was on the
Insurance Company to establish that there was a violation of
contract of insurance.
6. It is not in dispute between the parties that it was a term of
the Contract of Insurance that the vehicle insured would not be
driven by a person not having a valid driving license. Under the
circumstance, the Insurance Company could do no better than
to prove that the driver was not holding a valid driving license.
7. Appellant could have shifted the onus by entering the witness
box and justifying that he had seen the driving license and it
appeared as a genuine one and he was satisfied with the driving
skills of the driver engaged.
8. Observations of the three Bench decision of the Supreme
Court reported as JT 2004 (1) SC 109, National Insurance
Co.Ltd. Vs. Swaran Singh and Ors. relied upon by learned
counsel for the appellant have to be understood in the factual
context of each and every case. The observations of the Hon'ble
Supreme Court that the onus is on the Insurance Company to
establish willful breach of conditions of the insurance policy
means that the initial onus is on the insurance company.
9. In the discharge of initial onus, insurance company can do
no better than to prove that the driving license of the driver of
the vehicle was a forged document. It is then for the insured to
come in the witness box and depose that he had taken all
reasonable care. If the insured discharges the said onus, it
would shift back to the insurance company and in the context of
the testimony and evidence of the insured on case to case basis
it would have to be determined as to in what manner the onus
has shifted back."
4. Thus, it is evident that the Appellant did whatever was in its power to
prove that the licence held by the driver was fake. The Insurance
Company has discharged the onus which was placed upon it but the
owner failed to prove that it had taken adequate care to ensure that there
was no breach of the terms and conditions of the policy. In view of this,
the Appellant has sufficiently established breach of terms and conditions
of policy and is entitled to grant of recovery rights. The Claims Tribunal
erred in not granting recovery rights to the Appellant.
5. The impugned judgment is therefore, set aside to the extent that the
Appellant Insurance Company shall be entitled to recover the amount of
compensation paid to Respondents no.1 to 5 in execution of this very
judgment without the necessity of taking recourse to independent
proceedings for recovery of the amount from Respondents no.6 and 7.
6. The Appeal is allowed in above terms.
7. Pending applications, if any, also stand disposed of.
8. The statutory amount of Rs.25,000/- shall also be refunded to the
Appellant Insurance Company.
(G.P. MITTAL)
JUDGE
JANUARY 08, 2015
pst
