Delhi High Court
National Insurance Co Ltd vs Kishen Kumar Gaur & Ors on 10 March, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th March, 2016
+ MAC.APP. 50/2010 & CM APPL. 1722/2010
NATIONAL INSURANCE CO LTD ..... Appellant
Through: Mr. Arbaaz Hussain, Adv. for Mr.
Shantha Devi Raman, Adv.
versus
KISHEN KUMAR GAUR & ORS ..... Respondents
Through: Mr. Naushad Ahmed Khan, Addl.
Standing Counsel (Civil), GNCTD
with Ms. Neelam Khohiya & Ms.
Astha Nigam, Advs. for respondents.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. By judgment dated 11.08.2009 on the claim petition under Sections
166 & 140 of the Motor Vehicles Act, 1988 (the MV Act), registered as suit
no. 602/2006, the motor accident claims tribunal (the tribunal) awarded
compensation in the sum of `2,30,000/- with interest in favour of the first
and second respondents on account of death of their son Karuna Gaur in a
motor vehicular accident that had occurred on 18.06.2002 involving
ambassador taxi bearing registration no.DL-1T-2951 (the offending vehicle),
admittedly insured against third party risk with appellant/insurance
company.
2. The tribunal held Rajesh Kumar, third respondent herein (the driver of
the offending vehicle) and Jagmohan, fourth respondent herein (the
registered owner/insurer) in respect of the offending vehicle jointly and
severally liable and called upon the insurer to pay the compensation. The
insurance company has already satisfied the award by making the payment
of the awarded compensation to the claimants. The only issue pressed in the
appeal at hand concerns the non-consideration, and consequent denial, of
plea for recovery rights against the owner on the ground that the vehicle was
allowed to be driven by the driver who was not holding a valid or effective
driving license.
3. It is noted that neither the owner nor the driver participated in the
inquiry before the tribunal. There was no contest to the contentions raised
by the insurer in the said proceedings. The tribunal's record shows that the
insurance company had raised the issue of driving license and consequent
breach of terms and conditions of the insurance policy, also by examining
Jai Chand (R3W1), an official of the concerned transport authority and
Navneet Chaudhary (R3W2), ADM of the insurance company to prove its
case that there was no valid or effective licence held by the driver on the
relevant date and that inspite of notices issued and served under Order 12
Rule-8 of the Code of Civil Procedure, 1908 (CPC), none was produced by
the owner/driver.
4. It is found that the tribunal did not deal with the defences raised by
the insurance company at all. The impugned judgment is conspicuously
silent on this aspect which is not proper.
5. In the above facts and circumstances, the issue with regard to the
breach of terms and conditions of the insurance policy and consequent claim
of the recovery rights is remitted to the tribunal for proper inquiry and
adjudication.
6. Needless to add, the insurer will be entitled to rely on the evidence
already adduced and will also be permitted an opportunity to adduce further
evidence, if any. Further, the parties which contest shall be allowed an
opportunity to cross-examine the additional witness of the insurer and also
an opportunity to lead evidence in rebuttal.
7. The parties are directed to appear before the tribunal for further
proceedings in light of the above directions on 21st April, 2016.
8. The tribunal, after conclusion of the further inquiry hereby ordered,
shall give clear findings on facts alleged and pass consequent order on the
plea of the insurer.
9. The statutory deposit, if made, shall be refunded.
10. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 10, 2016
ssc
