Delhi High Court
Future Generali India Insurace Co ... vs Bala & Ors on 17 March, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th March, 2016
+ MAC.APP. 513/2014 & CM No.14361/2015 (for restoration)
FUTURE GENERALI INDIA INSURACE CO LTD..... Appellant
Through Mr. Abhishek Kumar Gola, Adv.
versus
BALA & ORS ..... Respondent
Through Mr. S K Vashistha, Adv. for R-4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. By judgment dated 25.04.2014, the motor accident claims tribunal
(tribunal) decided accident claim case registered as MACP No.874/2011 and
granted compensation in favour of the first and second respondents
(claimants) in the sum of ₹12,13,272/- with interest on account of death of
Parvesh in a motor vehicular accident that occurred on 13.10.2011 involving
truck bearing No.HR 55M 3618 (offending vehicle) admittedly insured
against third party risk with the appellant insurance company (insurer) for
the period in question. The tribunal held inquiry and on that basis concluded
that the driver and owner of the offending vehicle (third and fourth
respondents respectively) were jointly and severally liable. During the
inquiry the insurance company had taken the plea that the driving licence
held by the third respondent had been got issued on the basis of a fake
driving licence and thus pleaded that there was a breach of terms and
conditions of insurance company and sought to be exonerated. This plea
was rejected by the tribunal and thus the insurance company was directed to
pay the compensation under the indemnity clause. By the appeal at hand the
insurer seeks to challenge the aforementioned finding and conclusion and
presses for recovery rights.
2. The tribunal considered the plea and the evidence by observing, thus,
in the impugned judgment :
"28. In order to prove that insurance company is liable to
recovery rights. They have come out with the defence that the
driving licence possessed by the driver was renewed on the
basis of fake driving licence.
29. R2W1 Ms. Prerna Jain has proved the notice under
order 12 rule 8 CPC and u/s 134 M. V. Act issued to driver by
their counsel Sh. M. P. Shahi. The witness has also proved the
postal receipt and verification report Ex. R3W1/7.
30. The insurance company has also brought in the witness
box R3W2 Sh. Ghanshyam Dass, Clerk, Office of Secretary
RTA, Nuh, Haryana who has stated that as per record driving
licence no.N-451/10 dated 11/4/2011 valid upto 10/4/2014 has
been renewed from their office on the basis of driving licence
bearing no.19642/AG/05 issued by RTA Agra.
31. The insurance company has also brought in the witness
box. R3W2 Sh. Raj Kumar, Junior Assistant, Regional
Transport Office, Agra, UP who had stated that DL bearing no.
19642/AG/05 dated 17/12/2005 which was valid upto
16/12/2025. The witness further stated as per their record the
driving licence was issued in the name of Sh. Lokendra Singh
Chahar S/o Sh. S. S. Chahar R/o H. NO.154, Balaji Puram,
Shahganj, Agra. The witness has proved the relevant entry in
the register which is Ex. R3W3/A. Therefore, as per insurance
company the authorities at Nuh, Haryana had renewed the
licence on the basis of fake licence of Agra. In this respect the
Ld. Counsel for the insurance company has relied upon
National Insurance company Vs. Santro Devi reported in 2001
(4) SSC 342. There is absolutely no diverse opinion as far as
the proposition of law laid down by the Apex Court. However,
the matter does not stop here and the insurance company still
has to prove that the insured had committed willful, deliberate
and conscious breach of the policy.
X X X
33. In the present case on the date of accident the driver was
having a valid licence and this driving licence may have been
seen by the owner of the offending vehicle and finding it all
right, he may have allowed the driver to drive the vehicle. As
per law the owner was not supposed to verify or check the
records of the licensing authority to satisfy himself that driving
licence was obtained on the basis of fake driving licence,
therefore by any stretch of imagination it cannot be said that
there was any deliberate or conscious and willful breach on the
part of the owner. He also have no notice if the new licence has
been obtained on the basis of a fake licence.
34. The simple question arises whether the owner was aware
or had noticed that the licence was obtained on the basis of
fake licence and the owner had still permitted him to drive? The
answer to this in all probability is in the negative because
nothing on record has come if the owner had any such notice.
As regards notice under order 12 rule 8 CPC the same has
been issued by advocate and the best evidence to prove the
notice was to examine the advocate. If the same is proved by
simply the Senior Executive (legal) of insurance company. The
same is not tenable in law as to the mode of proof. Therefore,
no reliance can be placed on the notice under order 12 rule 8
CPC. The best evidence is of the subscriber of the notice."
3. The reasoning (in para 34) ignoring the notice under Order 12 Rule 8
of the Code of Civil Procedure, 1908 (CPC) may be debatable. But the fact
remains that the driver held a valid driving licence issued by the licensing
authority at Nuh (Haryana) on 11.04.2011 with validity up to 10.04.2014,
thus, covering the date of accident. For purposes of the proceedings before
the tribunal, it was of no consequence that the driving licence had been got
issued on the basis of some fake document purporting to have been issued
by the licensing authority at Agra (UP). Such facts may give rise to
consequences, including under the criminal law, against the person having
indulged in fabrication or use of forged documents. Without it being shown
that the owner of the offending vehicle was privy or party to such design on
the part of the driver to obtain a driving licence on the basis of fabricated
document, the insurer cannot be allowed to plead breach of terms and
conditions of the insurance policy. [United India Insurance Company Ltd. V.
Lehru & Ors. (2003 3 SCC 338) and National Insurance Company V.
Swaran Singh (2004) 3 SCC 297].
4. No other point was pressed.
5. For the foregoing reasons, the appeal is found unmerited and is
accordingly dismissed.
6. Statutory deposit, if made, shall be refunded.
R.K. GAUBA
(JUDGE)
MARCH 17, 2016/VLD
