National Insurance Co. Ltd. vs J S Bansal & Ors
2016 Latest Caselaw 1061 Del

$~16

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 10th February, 2016
+                         MAC.APP. 902/2013

       NATIONAL INSURANCE CO. LTD.                         ..... Appellant
                          Through:      Mr. Arbaaz Hussain, Adv. for
                                        Ms. Shantha Devi Raman, Adv.
                          versus

       J S BANSAL & ORS                                ..... Respondents
                          Through:      Mr. Shantmanu Singh, Adv. for
                                        R-2 & 3.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. The short issue raised in this appeal is as to whether there was any breach of terms and conditions of the insurance policy on the part of the person insured (third respondent Jatinder Mohan), the registered owner of bus bearing registration no.DL-1PA-6429. The said bus is stated to have been involved in an accident at about 10:00 AM on 14.06.2008 near NSCI, Mathura Road, New Delhi resulting in injuries being suffered by the first respondent (J. S. Bansal). The first respondent had brought the claim petition which was registered by the motor accident claims tribunal (the tribunal) as suit no.38/2011. While admitting that there was an insurance policy effective for the relevant period covering third party risk in respect of the bus, the insurance company took the

plea that driving licence no.C03091999158742 purported to be issued by licensing authority, Sheikh Sarai, Delhi, which was claimed to be held by the driver (second respondent Mohd. Farid) at the relevant point of time was a forged document. The insurance company led some evidence for proving the said contention. Noticeably, the third respondent (the owner of the vehicle) and the second respondent (the driver of the vehicle) though having expressed desire to contest the petition by filing written statement did not lead any evidence nor participated at the time of inquiry. The contention of the insurance company was repelled and rejected by the tribunal on the ground that the witnesses examined to prove that the license in question had not been issued by licensing authority, Sheikh Sarai were not in a position to prove forgery because the driving license could have been issued by any of the other licensing authorities of Delhi.

2. In an inquiry of above nature, it is primarily positive evidence which is first expected to be adduced. It was the responsibility of the owner and the driver of the vehicle to discharge the primary burden by leading evidence that the driving license statedly possessed by the driver was a genuine document.

3. In the above facts and circumstances, both sides agree that the issue as to whether the driving license relied upon by the driver and the owner was genuine or not and consequently as to whether there has been breach of terms and conditions of the policy giving rise to the title of the insurance company to recovery rights be remitted to the tribunal for further inquiry and adjudication.

4. The impugned judgment to the extent it rejected the contention of the insurance company in above regard is set aside. The issue as discussed above is remitted to the tribunal for further inquiry and fresh adjudication.

5. The insurance company had been directed by order dated 07.10.2013 to deposit the entire compensation awarded in the impugned judgment with the tribunal. It is noted that the appeal registered as MACT case no.958/2013 has been preferred by the claimant seeking enhancement of the compensation amount. While the said appeal for enhancement shall come up for consideration in due course, there is no reason why the amount of compensation awarded by the tribunal in the impugned judgment be not released to the claimant. It is directed that the tribunal shall release the amount of compensation deposited by the insurance company in terms of afore quoted directions of this court to the claimants in terms of the impugned judgment. In the event of the insurance company succeeding in proving its contentions respecting breach of terms and conditions of the policy, the tribunal will consider grant of the recovery rights.

6. The appeal stands disposed of in above terms.

7. The statutory deposit, if made, shall be refunded.

R.K. GAUBA (JUDGE) FEBRUARY 10, 2016/ssc