Delhi High Court
Oriental Insurance Company Ltd. vs Suman Verma & Ors. on 17 May, 2016
$~1, 2 & 10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th May, 2016
+ MAC.APP. 260/2013
ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
Through Mr. Abhishek Kumar Gola, Adv.
versus
SUMAN VERMA & ORS. ..... Respondent
Through Mr. Anshuman Upadhyay, Adv. for
R-3
+ MAC.APP. 280/2013
ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
Through Mr. Abhishek Kumar Gola, Adv.
versus
OM PRAKASH VERMA & ORS. ..... Respondent
Through Mr. Anshuman Upadhyay, Adv. for
R-3
+ MAC.APP. 281/2013
ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
Through Mr. Abhishek Kumar Gola, Adv.
versus
KUMARI SHIVANI & ORS. ..... Respondent
Through Mr. Anshuman Upadhyay, Adv. for
R-3
MAC APP. No.260/2013 & conn. Page 1 of 6
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 18.09.2006, a motor vehicular accident occurred at about 5.20
AM involving two motor vehicles, one being a motorcycle bearing No.DL
4 SNB 3357 (motorcycle) and the other a Qualis car bearing registration
No.DL 1VA 1461 being used as a taxi (the taxi). As a result of the
collision Pramod died and two other persons suffered injuries (Shivani and
Suman Verma). Three accident claim cases were filed, they being
registered as case No.283/2008 on account of death and case numbers
292/2008 and 27/2008 on account of compensation for injuries. All the
three accident claim cases invoked Sections 166 & 140 of Motor Vehicles
Act, 1988 (MV Act) and were consolidated for inquiry. In each of the said
cases Oriental Insurance Co. Ltd. (appellant in these appeals) was
impleaded as a party respondent, it having admittedly issued an insurance
policy against third party risk for the period in question in respect of the
taxi. Additionally, Prem Singh and Ram Prasad were also impleaded as
respondents, they being driver and owner of the taxi.
2. Before the tribunal, the driver and owner of the taxi submitted
written statement and denied involvement or rash or negligent driving of
the taxi being the cause for the collision. The insurer contested the claim
cases pleading that there was breach of terms and conditions of the
insurance policy as the taxi was not covered by a valid permit. The
tribunal, after holding inquiry, by common judgment dated 12.12.2012,
upheld the case of the claimants about the accident having occurred due to
negligent driving of the taxi which finding has attained finality as it was
never challenged any further. By the same judgment, compensation was
awarded in each of the three cases, in the case of death in the sum of
Rs.5,30,955/- and in the injury cases in the sums of Rs.14,000/- and
Rs.1,03,899/- respectively. The tribunal, however, was not impressed with
the plea of the insurer about the breach of terms and conditions of the
insurance policy and, thus, directed it to satisfy the awards in each case
with interest.
3. Feeling aggrieved with the rejection of its plea for exoneration, the
insurer has come up with these appeals challenging the view taken by the
tribunal. The plea of the insurance company was considered and rejected
by the tribunal by the impugned judgment :
"40. The insurance company have taken plea that the driver
of the offending vehicle was driving the same without having
any permit. The insurance company have also produced its
own officer as R3W1 Sh.Hukumat Rai who solemnly affirmed
that there was breach of terms and conditions of the policy It
also took the plea that the driver and owner were issued with
the notice u/o 12 R 8 PC vide Ex. R3W1/2. The postal receipts
were proved as Ex. R3W1/3 and R3W1/4. The AD card or any
service proof have not filed by the insurer.
41. Further in a latest judgment titled Shiv Devi Vs. Manoj
Kumar MAC Appeal No.139/10 decided on 05/10/10, the Hon'
ble High Court has held that mere issuance of notice u/o 12 R
8 CPC by the insurance company to owner and driver of the
offending vehicle does not go to prove much less conclusively
that driver did not possess driving license.
42. Coming to present case, the police have not even
challaned the driver for driving the same without permit.
Simplicitor by producing its own officer to depose for proving
notice u/s 12 R8 CPC to establish the breach of the terms and
conditions of the policy, the insurance company does not
become entitled to the recovery rights without having further
proof of the same. Therefore, the insurance company is not
entitled for recovery rights for the breach of the terms and
conditions of the policy. The prayer of the insurance company
stands rejected accordingly."
4. Noticeably, in spite of opportunity before the tribunal, the driver or
owner did not adduce any evidence. Further, when R3W1 was examined
by the insurer, the driver and owner of the offending vehicle chose to
remain absent from the proceedings. Thus, they did not offer any challenge
to the testimony of R3W1. In these circumstances, the issuance of notice
under Order 12 Rule 8 of Code of Civil Procedure, 1908 (CPC) by the
insurance company to the driver and owner of the taxi had been duly
proved. The said evidence also brings on record that no challenge was
offered. Thus, in spite of the said notices neither the driver nor the owner of
the offending vehicle produced any such document during the proceedings
before the tribunal as could show facts to the contrary.
5. The submission of the counsel for the driver and owner in the
appeals that the tribunal had adequately considered the issue and has
reached a correct finding because the police did not prosecute the said
parties for having been brought the vehicle on road without permit, is not
acceptable. The insurance company had done what was within its power to
do. It would not have any information about the permit unless the same
were shared with it by the driver or owner. The driver and owner having
not responded to the notices under Order 12 Rule 8 CPC, the only inference
is that they do not have any document in the nature of permit to show. The
burden, thus, had shifted from the insurance company on to the owner and
driver of the offending vehicle. No evidence having been led by them, a
finding has to be returned that the taxi was brought on road without a valid
permit.
6. In National Insurance Co. Ltd. v. Challa Bharathamma (2004) 8
SCC 517, the Supreme Court observed, thus :
"High Court was of the view that since there was no permit,
the question of violation of any condition thereof does not
arise. The view is clearly fallacious. A person without permit
to ply a vehicle cannot be placed at a better pedestal vis-à-vis
one who has a permit, but has violated any condition thereof.
Plying of a vehicle without a permit is an infraction.
Therefore, in terms of Section 149(2) defence is available to
the insurer on that aspect. The acceptability of the stand is a
matter of adjudication. The question of policy being operative
had no relevance for the issue regarding liability of insurer.
High Court was, therefore, not justified in holding the insurer
liable."
7. The omission or failure on the part of the police to initiate criminal
action on account of absence of permit cannot lead to the inference that a
permit existed. This fact had to be shown by positive evidence by the
driver and owner of the offending vehicle who only would have access to
the crucial document if it actually existed. No evidence having been led by
them, it is held that the insurance company has proved breach of terms of
the policy on account of there being no permit.
8. Thus, the appeals are allowed. The insurance company is granted
recovery rights in each of these three cases against the owner and driver of
the offending vehicle. For enforcing the same, the insurer shall have the
liberty to take out appropriate proceedings before the tribunal.
9. The appeals are disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 17, 2016
VLD
