New India Assurance Co. Ltd. vs Mohd. Hasim & Ors.
2015 Latest Caselaw 3722 Del

$-6

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Decided on: 07th May, 2015
+       MAC.APP. 33/2012

        NEW INDIA ASSURANCE CO. LTD.
                                                         ..... Appellant
                             Through:   Mr. Manish Kaushik, Advocate
                                        for Mr. K.L. Nandwani,
                                        Advocate

                    versus

        MOHD. HASIM & ORS.                            ..... Respondents
                     Through:           Mr. S.N. Parashar, Advocate for
                                        Respondent no.1


        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The appeal is directed against the judgment dated 01.09.2011

passed by the Motor Accident Claims Tribunal (the Claims

Tribunal) whereby compensation of Rs.92,500/- was awarded

in favour of Respondent no.1 for having suffered injuries in a

motor vehicular accident which occurred on 10.01.2008.

2. The only ground raised by the Appellant is that the owner did

not possess any permit in respect of vehicle no.DL-1PA-1015

involved in the accident. It is contended that the vehicle

involved was a transport vehicle and it was incumbent to have a

permit for the same.

3. It is well settled that initial onus to prove that there was willful

and conscious breach of the terms and conditions of the

insurance policy on the part of the insured is on the Insurance

Company. An application (CM.APPL 414/2012) was moved by

the Appellant to produce additional evidence in order to prove

breach of the terms and conditions of the insurance policy. The

application was allowed by Suresh Kait, J. by an order dated

13.05.2014. The Appellant summoned relevant record.

However, the same was not produced as Mr. Santosh Kumar,

Dealing Assistant from State Transport Authority, Rajpur Road

testified that the record has already been weeded out as per

rules. Also, no notice under Order 12 Rule 8 of the Code of

Civil Procedure, 1908 was served upon the insured to produce

the permit in respect of the vehicle involved. Thus, it is evident

that the Appellant failed to establish conscious and willful

breach of the terms and conditions of the insurance policy.

4. The appeal therefore, has to fail; the same is accordingly

dismissed.

5. Pending applications, if any, also stand disposed of.

6. Statutory amount, if any, deposited shall be refunded to the

Appellant Insurance Company.

(G.P. MITTAL) JUDGE MAY 07, 2015 pst