Shakuntala Devi vs Nanhe Maiiya & Ors.
2016 Latest Caselaw 3191 Del

$~R-58

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Date of Decision: 03rd May, 2016
+                        MAC.APP. 470/2007

       SHAKUNTALA DEVI                                   ..... Appellant
                         Through:      None.

                         versus

       NANHE MAIIYA & ORS.                               ..... Respondents
                         Through:      Mr. Saurabh Kumar Tuteja, Adv. for
                                       R-3.

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

R.K.GAUBA, J (ORAL):

1. The first respondent (the claimant) had suffered injuries in a motor vehicular accident that occurred on 13.08.2003, involving negligent driving of bus bearing registration no.DL-1PB-3426 (the offending vehicle). It was proved before the motor accident claims tribunal (the tribunal) during inquiry, and is not disputed in this appeal, that the offending vehicle is registered in the name of the appellant and was insured against third party risk for the period in question with Oriental Insurance Company Limited (third respondent herein). The local police had also registered first information report (FIR) no.257/2003 in police station Sadar Bazar, in the course of investigation into which Dinesh Kumar (second respondent herein)

was arrested on the basis of evidence indicating he to be the driver of the offending vehicle at the time of accident.

2. The claimant instituted an accident claim case (petition no.473/2003) before the tribunal on 19.11.2003 invoking Sections 166 & 140 of the Motor Vehicles Act, 1988 (the MV Act), though pressed under Section 163-A of the MV Act, impleading the afore-said Dinesh Kumar describing him as the driver of the offending vehicle, in addition to the appellant (the owner) and Oriental Insurance Company Ltd. (the insurer) as party respondents.

3. The tribunal issued notice in answer to which Dinesh Kumar appeared and submitted written statement seeking to contest denying that he was the driver of the bus at the relevant point of time, pleading that the offending vehicle instead was driven by one Tilak Raj son of Ashwani Kumar, resident of E-1510, Jahangirpuri, Delhi. The appellant also submitted written statement wherein she made pleadings similar to those set out by Dinesh Kumar in his written statement, mainly contending that the offending vehicle was driven not by Dinesh Kumar but by Tilak Raj. The insurer contested the claim case before the tribunal, inter-alia, stating that Dinesh Kumar, who had been shown in array of the parties, was not holding valid or effective driving license and, thus, there was a breach of terms and conditions of the insurance policy.

4. During inquiry, the claimant led evidence by examining himself (as PW1) to prove facts relating to the accident and also examined certain other witnesses relating to nature of injuries and consequences thereof. Neither Dinesh Kumar nor the appellant entered into the witness box. The insurer, on the other hand, examined R. K. Sharma (R3W1) senior assistant to prove

facts relating to its plea about driving license handed over by Dinesh Kumar to the investigating police to be a fake document and also about the driver and owner not having responded to the notice under Section 12 Rule-8 of the Code of Civil Procedure, 1908 (CPC) which had been issued requiring the production of, amongst others, the driving license of the driver.

5. The tribunal found that the claimant was guilty of contributory negligence and proceeded to consider the claimant's case under Section 163- A of the MV Act. It granted award of `3,67,400/- with interest in his favour.

6. The plea of insurance company about breach of terms and conditions of the insurance policy was considered and accepted resulting in recovery rights thus:-

"It is admitted fact that the offending bus was insured for third party risks vide policy No.271400/2004/187 at the time of accident in the name of insured respondent no.2 Smt. Shakuntla Devi. At the cost of repetition, respondent no.1 denied that he was driving the bus at the time of accident and he stated in his written statement that it was being driven by one Tilak Raj, respondent no.2. Smt. Shakuntla Devi in her written statement also stated that it was Tilak Raj who was driving the bus at the time of accident. The insurance company produced R3W1 R. K. Sharma, who testified that notice under Order XII rule 8 CPC, copy of which is Ex.R3W1/B was served on the insured for production of driving license of the driver apart from original policy of the insurance company, fitness permit report. R3W1 testified that despite due service of the notice as per AD card and postal receipt Ex.R3W1/C1, C2, the insured did not respond. R3W1 also testified that the driving license of driver R-1 Dinesh Kumar was verified from RTO Sonipat and it was found genuine.

The initial burden to prove that the driver was not possessing a valid and effective driving license at the time of accident was on the

insurance company and it could have done no better than to serve notice on the insured under Order XII Rule 8 CPC for production of the driver and driving license. The insurance company could have done no better than to prove that driving license of the driver on verification from the registering authority was found not genuine.

Onus then shifted upon the insured to appear in the witness box. Respondent no.2 has not come in the witness box. She has neither produced respondent no.1 Dinesh Kumar nor the alleged driver Tilak Raj. It was respondent no.1 who was arrested by the police in connection with the accident. The fact that the driver of the bus has not been produced, invites an adverse inference against R- 2/insured that she could not produce the driver since respondent no.1 was not holding a valid and effective driving license at the time of accident to her knowledge.

All that does not help the insurance company. The insurance company is liable to compensation but it shall be at liberty to recover the amount of compensation paid by it to the claimant from the insured. Reference in this connection can be had to decision in National Insurance Company vs. Swaran Singh, 2004 ACC 1 (SC).

Therefore, the liability to pay compensation to the claimant is fastened on respondent no.3 insurance company, which be paid to the claimant within 30 days from today. The insurance company shall be at liberty to recover the amount of compensation paid by it to the claimant from the insured with interest."

7. The appeal at hand was filed questioning the grant of recovery rights, again contending that the offending vehicle was driven not by Dinesh Kumar (second respondent) but by Tilak Raj, the person referred to in the written statement of the appellant.

8. When the matter is taken up for hearing none would appear on behalf of the appellant to argue. This has been state of affairs even on the two dates of hearing. There is no reason why the matter should be deferred yet again.

9. Mere pleadings denying the involvement of Dinesh Kumar as the driver of the offending vehicle cannot suffice. The fact that Dinesh Kumar was arrested during investigation of the corresponding criminal case affirms the case of the claimants with regard to his said role. Despite opportunity, neither the appellant nor Dinesh Kumar led any evidence at the inquiry. No evidence has been offered even at the stage of appeal. Mere say-so cannot be accepted against the clear evidence on record.

10. Thus, the appeal is unmerited. The learned tribunal has set out proper reasons as quoted above, to accept the contention of the insurance company about breach of terms and conditions of the insurance policy so as to grant it recovery rights. The said reasoning cannot be faulted. Therefore, the appeal is dismissed.

11. The stay against enforcement of the recovery rights is vacated. The statutory amount, if deposited, shall be made over to the insurance company towards part satisfaction of its recovery rights.

R.K. GAUBA (JUDGE) MAY 03, 2016 ssc