Delhi High Court
New India Assurance Co Ltd. vs Suman And Ors. on 28 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 28, 2017
+ MAC.APP. 133/2009
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through: Mr. D. K Sharma, Advocate
Versus
SUMAN & ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
Impugned Award of 3rd January, 2009 grants compensation of
`8,76,000/-with interest @ 7.5% per annum to respondents-claimants on
account of death of one Subhash Chand in a road accident on 8th April,
2005. The facts are already noted in impugned Award and need not be
adverted to for the reason that in this appeal, appellant-Insurer seeks
recovery rights only against driver and owner of vehicle in question.
Pertinently, the driver and owner of vehicle in question had neither
contested before learned Tribunal nor before this Court.
To support the stand that driving licence of driver of vehicle in
question is fake, appellant had relied upon evidence of its Assistant
Manager (R3W1) and evidence of concerned official from licencing
authority.
On the aspect of driving licence in question being fake, the finding
returned by learned Tribunal is as under:-
"In fact the photocopy of the driving licence which had
been marked A is showing to be bearing no. 4119/98 and is
showing the date of issue as 18/08/2000, as such, neither
any record pertaining to the year 1991 nor the year 1998
would have been relevant even if the same had been
produced. The insurance company has failed to prove that
driving licence of respondent no.1 had not been issued or
that it was not valid on the date of the accident."
In this appeal, additional evidence has been led by appellant, but
there is no cross-examination as none had appeared on behalf of
respondents despite service. The additional evidence led by appellant
comprises of evidence of Vijay Pal Singh, an official from concerned
Transport Authority. The Additional evidence led by this witness is to the
effect that from 1st January, 1998 onwards, the driving licence in question
has not been issued by the concerned Transport Authority. The precise
submission advanced by learned counsel for appellant is that in face of
additional evidence led, recovery rights ought to be granted to appellant-
Insurer.
Upon hearing and on perusal of impugned Award, evidence on
record and the additional evidence led, I find that although the evidence
of concerned official from Transport Authority concerned before Ld.
Tribunal was inconclusive to arrive at a finding that the driving licence in
question was fake, but in view of the additional evidence led, it becomes
quite evident that the driving licence in question is fake. Pertinently, the
additional evidence led remains unchallenged. Relevantly, neither the
driver nor the owner of vehicle in question had led any evidence and so,
in such a situation, in view of unchallenged additional evidence, recovery
rights ought to be granted to appellant.
Supreme Court's decision in Oriental Insurance Company Ltd. vs.
Zaharulnisha & Ors., (2008) 12 SCC 385 while dealing with a case of
invalid or ineffective driving licence has reiterated that in the first
instance, awarded compensation ought to be paid by Insurer with right to
recover it from driver and owner of vehicle in question.
Applying the afore-noted dictum of Supreme Court in
Zaharulnisha (supra) to the facts of instant case, impugned Award is
modified to the extent of granting recovery rights to appellant against
owner and driver of vehicle in question.
Learned counsel for appellant-Insurer submits that in terms of
order of 30th March, 2009, in this appeal, awarded compensation with
interest has been deposited with learned Tribunal. If it is so, then
appellant shall have the right to recover it, from driver and owner of
vehicle in question, who are respondents No.6 & 7 in this appeal.
Statutory deposit, if any, be refunded to appellant-Insurer as per
Rules.
With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
FEBRUARY 28, 2017
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