Delhi High Court
National Insurance Company ... vs Rajesh Devi & Ors. on 10 August, 2017
$~R-106 & R-107 (common order)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 10th August, 2017
+ MAC.APP. 484/2009
NATIONAL INSURANCE COMPANY LIMITED... Appellant
Through: Mr. D.K. Sharma, Advocate
versus
RAJESH DEVI & ORS. ..... Respondents
Through: Nemo.
+ MAC.APP. 485/2009
NATIONAL INSURANCE COMPANY LIMITED... Appellant
Through: Mr. D.K. Sharma, Advocate
versus
KISHAN PAL & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 24.05.2005 a motor vehicular accident took place at about
3:30 p.m. due to rash driving of truck bearing registration No.DL-
1GB-2108, it being registered in the name of the third respondent and
being driven at the relevant point of time by the second respondent in
these connected appeals. Two persons suffered injuries in the process,
they being Master Satish and Smt. Rajesh Devi, the former dying in
the process. Two accident claim cases were instituted, they being
MACT Suit No.272 & 273/2005 respectively by the first respondent in
these appeals.
2. In both the cases, the above-said driver and owner of the truck
were impleaded as respondents in addition to the appellant insurance
company (the insurer), it admittedly having issued insurance policy to
cover the third party risk in respect of the said vehicle. Both cases
were clubbed for inquiry on the conclusion of which they were
decided by common judgment dated 03.07.2009.
3. While upholding the claim of the compensation on the principle
of fault liability and awarding compensation, the liability was fastened
on the insurance company (the appellant) in each case, its plea about
breach of terms and conditions of the insurance policy on the basis of
evidence showing driving licence of the second respondent to be fake
having been rejected.
4. These appeals are pressed by the insurer only to press for
recovery rights, its contention being that the fact that it had led
evidence to show that the driving licence of the second respondent
was fake should have resulted in a finding being returned that there
was breach of terms and conditions of the policy on which basis the
recovery rights deserved to be granted.
5. It is noted that the second and third respondents suffered the
proceedings before the tribunal ex-parte. There was no contest on their
behalf to the evidence led by the appellant primarily through
testimony of K.K. Mittal (R3W1), Assistant Manager of the insurance
company it, in turn, being based on a report (Ex.R3W1/4) issued by
District Transport Officer, Patna confirming the fact that the driving
licence in question was fake.
6. Though in response to the notices on these appeals, the second
and third respondents did appear, the third respondent having put in
appearance through counsel, at the hearing there is no appearance on
their behalf.
7. Having heard the learned counsel for the appellant, this court is
of the view that the tribunal has not properly construed the evidence
which was adduced before it. The evidence led by the appellant
through R3W1 proved the report of the District Transport Officer to
confirm that the driving licence in question was fabricated. There was
no reason to disbelieve the said report. The witness had also proved
that the insurance company had issued a notice (Ex.R3W1/1) under
Order XII Rule 8 of the Code of Civil Procedure, 1908 (CPC), both to
the second and third respondents having sent it by post (postal receipt
Ex.R3W1/2) calling them upon to produce before the tribunal on the
date fixed (05.07.2008), inter alia, the driving licence of the driver of
the offending vehicle. In spite of the said notices, there was no
appearance or response on behalf of second and third respondents
before the tribunal. As mentioned earlier, these parties had opted to
suffer the proceedings ex parte from the very beginning, they having
been served for 22.10.2005. The additional caution through notice
under Order XII Rule 8 CPC atleast should have impelled them to
participate in the inquiry and show to the tribunal that there was no
breach of terms and conditions of the insurance policy.
8. In the above facts and circumstances, it must be held that the
insurance company has proved that the driving licence presented by
the second respondent was a fake document. This must lead to
conclusion of breach of the terms and conditions of insurance policy
as there is no claim of due diligence on the part of the owner (insured).
9. Thus, the appeals are allowed. The impugned judgment, to the
extent it rejected the plea for recovery rights, is set aside. Right to
recover the compensation with corresponding interest paid to the first
respondents in the two cases is granted in favour of the appellant
against the second and third respondents, who are jointly and severally
liable.
10. The statutory amount shall be refunded to the appellant
insurance company in each case.
11. Both the appeals stand disposed of in above terms.
R.K.GAUBA, J.
AUGUST 10, 2017
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