Delhi High Court
Wakil Khan vs The New India Assurance Co. Ltd. & ... on 3 May, 2016
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 03.05. 2016
+ MAC.APP. 295/2013
WAKIL KHAN ..... Appellant
Through: Mr.Ravi Mehta, Adv.
versus
THE NEW INDIA ASSURANCE CO. LTD. & ORS.
..... Respondents
Through: Mr.P.Acharya with Mr. Sameer
Nandwani, Advs.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Baby Santosh, child of the second respondent (the claimant) had died
in motor vehicle accident that occurred on 29.04.2007 involving negligent
driving of a truck bearing number UP-13C-5711 (offending vehicle) statedly
driven by the third respondent Mohd. Hasrat (the driver). The offending
vehicle is admittedly registered in the name of the appellant who was
impleaded as second respondent before the tribunal, it having been insured
against third party risk with the first respondent (insurer). The second
respondent with his wife Veera instituted an accident claim case (MACT
Suit No. 132/2009) on 23.07.2007 seeking compensation under Sections
166 & 140 of the Motor Vehicles Act, 1988 (the MV Act) impleading the
appellants ( the driver and insurer of the offending vehicle).
2. The Tribunal by judgment dated 23.12.2009 upheld the case of death
having occurred due to negligent driving of the appellant/driver and
accorded compensation in favour of the claimants.
3. The insurer had taken the plea that there was a breach of terms and
conditions of insurance policy as the driver was not holding a valid or
effective driving licence. It appears from the record that the insurer had
issued notice under Order 12 Rule 8 of Code of Civil Procedure 1908
(CPC), inter alia, to the appellant and its driver sent by registered A.D. post
but there was no response. In spite of notice, no evidence was led before the
Tribunal either by the appellant or the driver, they having filed a joint
written statement only to deny the involvement of the offending vehicle.
The Tribunal upheld the contentions of the insurer that no driving licence or
permit had been shown, and, therefore, there was a breach of terms and
conditions of the insurance policy. On that basis, the insurance company,
which was called upon to satisfy the award has been given recovery rights
against the second owner.
4. By the appeal at hand, the appellant points out that a driving licence
had been handed over to the Investigating Officer of police station
Gokulpuri, Delhi which had registered the First Information Report (FIR)
No. 291/2007 respecting the accident in question, the documents pertaining
thereto (Ex.P-1 collectively) having been submitted by the SHO police
station Gokulpuri. Indeed, the said documents submitted to SHO police
station Gokulpuri include (at page 105 of the Tribunal's record) a driving
licence purportedly issued in favour of the driver Mohd. Hasrat on
24.04.2001 by the licencing authority at Bulandsehar, U.P., it having been
renewed on 03.09.2005 upto 02.09.2008; covering the date of accident,
being valid for heavy transport vehicle (HTV).
5. Confronted with the said document, the counsel for the insurer
submits that the genuineness of this document has not been proved. The
submission seems to be correct. The owner having been served with the
notice under Order 12 Rule 8 CPC was duty bound to respond. He was
aware that the insurer had raised the issue of driving licence before the
Tribunal. Yet, no response was sent to the notice under Order 12 Rule 8
CPC nor any evidence has been led before the Tribunal. Mere handing-over
of copy of a document, purportedly a driving licence, to the police officer
would not suffice, particularly when investigating police does not seem to
have checked the genuineness or otherwise of the same.
6. In these facts and circumstances, as now requested, the appellant
deserves to be granted another opportunity to prove that the driver held a
valid and effective licence in respect of the offending vehicle on the date of
the accident. In this view, the recovery rights are set aside. The limited
issue arising out of the plea of the insurer respecting breach of terms and
conditions of the policy on account of the driving licence is remitted to the
Tribunal for further enquiry and fresh adjudication.
7. It is made clear that in such further enquiry it shall be the onus of the
appellant (owner of the offending vehicle) to prove the fact that the driver
held a valid and effective driving licence. The witnesses examined in this
regard shall be tendered for cross-examination to the parties which contest
which also shall be entitled to lead evidence in rebuttal, if any.
8. The parties are directed to appear before the Tribunal on 03.06.2016
for further proceedings.
9. The statutory amount deposited by the appellant shall not presently be
refunded. It shall continue to be held till decision is taken afresh by the
Tribunal on the above issue. If the Tribunal were to conclude that a valid
and effective driving licence was held by the driver, it would be at liberty to
direct refund of the statutory amount deposited by the appellant under
Section 173 of the M.V. Act. Conversely, if the decision is against the
contention of the appellant, the Tribunal will be at liberty to revive recovery
rights in favour of the insurer.
10. The appeal is disposed of in the above terms.
R.K. GAUBA
(JUDGE)
MAY 03, 2016
mr
