Delhi High Court
Icici Insurance Company Ltd vs Mahender Singh And Ors on 5 December, 2016
$~13, 15 & 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: December 05, 2016
(i) + MAC.APP. 1287/2012 & C.M.No.21001/2012
(ii) + MAC.APP. 341/2013
(iii) + MAC.APP. 60/2014
ICICI INSURANCE COMPANY LTD ..... Appellant
Through: Ms. Suman Bagga and Mr. Pankaj
Gupta, Advocates
versus
(i) MAHENDER SINGH AND ORS
(ii) MAHENDER SINGH AND ORS
(iii) MANOJWATI AND ORS
.....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In the above-captioned three appeals, the challenge is to the
common impugned Award of 8th May, 2012 vide which compensation
has been granted to respondents-claimants while saddling appellant with
the liability to pay the awarded compensation.
In these appeals, recovery rights are sought qua driver and owner
of the offending vehicle in question. The facts are not in dispute and so,
needs no recapitulation. Suffice to note that in the unfortunate road
accident on 10th June, 2007, respondents-claimants/couple had sustained
injuries and their minor child had died.
In these appeals, respondents-owner and driver of the offending
vehicle in question have been served, but despite service, neither the
owner nor the driver of the offending vehicle in question has chosen to
appear and accordingly, there are set ex parte.
It is pertinent to note that even before the learned Tribunal,
respondents-owner and driver of the offending vehicle in question had not
appeared and they were proceeded ex parte.
Learned counsel for appellant-insurer submits that the grounds of
challenge in these appeals are identical and so, these appeals can be heard
together. Accordingly, these appeals have been heard together and are
being disposed of by this common judgment while treating MAC.
APP.341/2013 as the lead matter.
Learned counsel for appellant submits that there was no response to
Notice under Order 12 Rule 8 of CPC by the owner/driver of the
offending vehicle in question and they had not appeared either before the
learned Tribunal nor this Court and so, reliance upon decision in Lal
Chand v. Oriental Insurance Co. Ltd., (2006) 7 SCC 318 and National
Insurance Co. Ltd. v. Swaran Singh and Others, 2004 ACJ 1 are of no
avail and the learned Tribunal has erred in relying upon these decisions to
deny recovery rights to appellant. Nothing else is urged on behalf of
appellant.
Upon hearing and on perusal of impugned Award, evidence on
record and the decisions in Lal Chand (supra) and Swaran Singh (supra),
I find that the question of willful default can be examined once the
owner/driver of the offending vehicle in question appears and contests
before learned Tribunal. Pertinently, there was no response by the
owner/driver of the offending vehicle in question to Notice under Order
12 Rule 8 of CPC.
In the absence of owner/driver of the offending vehicle in question,
learned Tribunal was not justified in putting the onus on appellant to have
examined the witness from the transport authority to prove that the
driving licence issued to the driver of the offending vehicle in question
was fake. Such a view is being taken in view of the fact that original
form-54 issued by the concerned licencing authority is on record, which
clearly indicates that the copy of the driving licence relied upon was not
issued by the said licensing authority. So, it becomes evident that the
driving licence marked as 'X' on record is fake one. Whether the owner
of the offending vehicle was aware about it, can be only considered had
the owner of the offending vehicle in question appeared before the
learned Tribunal.
Supreme Court in Kusum Lata and Others Vs. Satbir And Others
(2011) 3 SCC 646 has reiterated that such like cases has to be decided on
preponderance of probability. A Coordinate Bench of this Court in
National Insurance Company Limited Vs. Smt. Pushpa Rana & ors. 2009
ACJ 287 has reiterated that proceedings under Motor Vehicles Act are
not akin to proceedings in a civil suit and hence, strict rules of evidence
are not required to be followed. So, strict proof is not required in cases
like instant one, particularly when the original record is available and
when the concerned owner/driver is not coming forward to dispute it.
In the above background, learned Tribunal was not justified in
denying the recovery rights to appellant on the premises that no notice
was sent to the concerned licencing authority to produce the record.
The finding on this aspect is set aside and these appeals are allowed
to the extent of granting the recovery rights to appellant qua the owner of
the offending vehicle in question.
While modifying the impugned Award to the aforesaid extent,
these appeals and the application are accordingly disposed of.
The statutory deposit made by appellant-insurer be refunded to
appellant.
(SUNIL GAUR)
JUDGE
DECEMBER 05, 2016
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