Delhi High Court
New India Assurance Co. Ltd. vs Naresh Kumar & Ors. on 7 December, 2017
$~R-661&662
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 7th December, 2017
+ MAC.APP. 1200/2012
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. Pankaj Seth, Adv.
versus
NARESH KUMAR & ORS. ..... Respondents
Through: None.
+ MAC.APP. 1202/2012
NEW INDIA ASSURANCE CO. LTD. ....Appellant
Through: Mr. Pankaj Seth, Adv.
RISHABH & ORS. . ....Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 18.12.2008, a motor vehicular accident took place involving
negligent driving of a motor vehicle described as motor cycle bearing
registration no. DL-6S-U-2053 (motor cycle), it resulting in injuries
being suffered by two persons namely, Jyoti and her one and half
years' old child Rishabh. Jyoti died as a result of the injuries
sustained. The two accident claim cases came to be instituted on
21.02.2009, one (suit no. 544/2011/2009) for compensation on
account of death of Jyoti and the other (suit no. 245/2010/2009) for
injuries suffered by minor child, Rishabh. Both cases were clubbed
for inquiry by the tribunal and, by judgment dated 10.07.2012, the
tribunal returned findings that the accident had occurred due to the
negligence on the part of motor cycle rider Mahesh, a respondent in
these appeals. It awarded compensation in each case and fastened the
liability to pay on the said driver Mahesh and Bimla (registered
owner of the motor cycle), she also being a respondent in these
appeals. The motor cycle was admittedly insured against third party
risk for the period in question with the appellant (insurer). The
insurer in the course of its contest in the said two cases had taken the
plea that there was a breach of terms and conditions of the insurance
policy as the driver Mahesh was not holding a valid and effective
driving licence at the relevant point of time. It led evidence by
examining Kiran Gupta (R1W1), its Assistant Manager and M.
Jayanta Singh (R1W2), the investigator. The tribunal, however, was
not impressed with the said evidence and held that the insurer had not
discharged the burden of proof upon it in respect of its plea about the
driver not holding a valid and effective driving licence. The liability
to pay the compensation in each case was thus, fastened on the
insurer.
2. By these appeals, the insurer reiterates the above said plea and
presses for recovery rights.
3. Both the driver (Mahesh) and Bimla, (the registered owner of
the motor cycle) though having been served, have failed to appear to
assist at the time of hearing on these appeals. The learned counsel for
the insurer has been heard and record perused.
4. In the context of a document purporting to be the driving
licence of the above mentioned driver (bearing no. 24355/BPR)
indicating it to have been issued by the District Transport Office at
Bishnupur District, Manipur, it has been proved by R1W1 by
verification report (Ex-R1W1/3) of its investigator (R1W2), it inter
alia being based on report of District Transport Authority Officer of
the Government of Manipur, District Bishnupur, that no such licence
had been issued in such name, the document being fake. The
evidence of R1W1 was contested by the registered owner (a
respondent before the tribunal) and was cross-examined by her
counsel with a vague suggestion that the investigator had not carried
out a proper investigation for the genuineness of the document, it
only being elicited that the report of the District Transport Office has
been given on the private letter head of the investigator and not on
Form 54. Noticeably, there was not even a remote suggestion that the
licence was genuine.
5. The insurer examined R1W2 on 25.01.2012 to prove the report
obtained from the District Transport Officer, Vishnupur at Manipur to
which there was no contest put in by either the registered owner or
the driver of the motor cycle.
6. R1W1 during the course of her testimony had proved that the
insurer had issued a notice under Order XXII Rule 8 of the Civil
Procedure Code (Ex-R1W1/6) which had been sent by post (Ex-
R1W1/7) calling upon the registered owner of the motor cycle to
produce the driving licence of the motor cycle rider. There is no
contest to her evidence showing that the notice was sent at the correct
address and leading to the inference that in due course, it would have
been delivered. There is no explanation given as to why there was no
response to the said notice by the registered owner of the motor cycle.
It is pertinent to add here that neither the driver nor the registered
owner of the motor cycle rider have led any positive evidence to
prove the existence of an effective driving licence held by the said
driver at the relevant time.
7. In light of the above facts and circumstances, the conclusion
reached by the tribunal so as to deny grant of recovery rights to the
insurance company cannot be upheld. The insurer had taken all the
necessary steps within its control to prove that the document relied
upon was not a genuine one. It was the burden of the driver or owner
of the motor cycle to lead positive evidence to the contrary which
they have failed to adduce. No such document has been submitted
even during the pendency of these appeals till date. The only
conclusion that can be drawn is that they had no valid or effective
driving licence to show.
8. On the foregoing facts and in the circumstances, the appeals are
allowed. Recovery rights are granted against Bimla (registered owner
of the motor cycle) and Mahesh (the driver) and in favour of the
insurance company in each case. For enforcement of such rights, the
insurance company may take out appropriate execution proceedings
before the tribunal.
9. The statutory deposits shall be refunded.
10. Both the appeals are disposed of in above terms.
R.K.GAUBA, J.
DECEMBER 7, 2017
umang
