Delhi High Court
Gurcharan Singh vs National Insurance Company ... on 28 August, 2017
$~R-145
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 28th August, 2017
+ MAC.APP. 621/2009
GURCHARAN SINGH ... Appellant
Through: Nemo.
versus
NATIONAL INSURANCE COMPANY LIMITED & ORS.
..... Respondents
Through: Mr. Pankaj Seth, Advocate for
R-1.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant is the registered owner of the bus bearing
registration No.DL-1PB-5177, the negligent driving of which, by the
second respondent resulted in a motor vehicular accident that occurred
on 08.07.2005 at about 9:15 a.m. involving collision against scooter
bearing registration No.DL-3SD-0247 resulting in death of its rider
Ramesh, giving rise to cause of action for accident claim case (Suit
No.470/2005) being instituted by his wife and other members of the
family dependent upon him, it resulting in judgment dated 17.07.2008
whereby the award of compensation was granted, the liability to pay
initially having been fastened on the first respondent, it concededly
being the insurer of the bus against third party risk for the relevant
period. However, the tribunal accepted the plea of the first respondent
about the breach of terms and conditions of the insurance policy, this
having regard to the evidence led through Arvind Kuamr (R3W1) and
Ram Lal (R3W2), the former an official of the Transport Authority at
Firozabad, U.P. and the other an official of the appellant insurance
company, the evidence collectively read showing that the second
respondent had presented the document in the name of driving licence,
which upon verification was found to be fake, the registered owner
(the appellant) having failed to respond to notice under Order 12 Rule
8 of the Code of Civil Procedure, 1908 (CPC) whereby it had been
called upon by the insurance company to produce all the relevant
documents including the driving licence. On the basis of such finding,
recovery rights were granted to it against the appellant.
2. It appears the appellant had taken exception to the execution
proceedings taken out by the insurance company for enforcement of
the said recovery rights by submitting application contending that such
recovery can be made only by way of separate civil suit, the objection
having been repelled by the tribunal by order dated 12.11.2009.
3. By the appeal at hand, the recovery rights were challenged on
the ground that the appellant had taken all the necessary precautions
while engaging the second respondent as driver as his driving licence
has been examined through one "Mishra ji" and, therefore, the
insurance company should be held liable to indemnify without demur.
4. It is noted from the tribunal's record that the appellant had
examined himself as R2W1 to testify to the above effect. But then, the
cross-examination remained inconclusive on 13.08.2007 when his
testimony was recorded, it having been deferred requiring him to
produce copy of the driving licence, which he was statedly in
possession. Instead of complying with the said direction or offering
himself for the further cross-examination, the appellant chose to
remain absent from further proceedings thereafter till the case was
decided. There is no explanation worth the name either in the
objections taken out during the execution proceedings, or in the appeal
presented before this court, for such evasion.
5. Since the contesting insurance company did not have full
opportunity for completion of the cross-examination, the part
testimony of the appellant (R2W1), cannot be treated as evidence
which could be considered.
6. In the result, the appeal must fail. It is dismissed.
7. The insurance company will have the liberty to prosecute the
enforcement of the recovery rights to their logical end.
8. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
AUGUST 28, 2017
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