Delhi High Court
Cholamandalam Ms General ... vs Savita & Ors. on 22 May, 2017
$~13 & 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 22th May, 2017
+ MAC.APP. 651/2016 & CM Nos. 30355, 30357 & 34590/2016
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mrs. Suman Bagga and Mr. Pankaj
Gupta, Advocates.
Versus
SAVITA & ORS. ..... Respondents
Through: Mr. Sanjiv Kumar, Advocate for
Respondent No.2.
+ MAC.APP. 683/2016 & CM Nos. 31477 & 31479/2016
CHOLAMANDALAM MS GENERAL INSURANCE CO LTD.
..... Appellant
Through: Mrs. Suman Bagga and Mr. Pankaj
Gupta, Advocates.
Versus
SAVITA & ORS. ..... Respondents
Through: Mr. Sanjiv Kumar, Advocate for
Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. These appeals under section 173 of the Motor Vehicles Act, 1988
impugn the common Award dated 29.01.2016 passed in Suit No. 248/09 and
MAC.APP.Nos.651 & 683 of 2016 Page 1 of 4
236/11 awarding compensation of Rs.11,37,567.60/- and Rs.3,25,000/- with
interest at the rate of 9% per annum to the beneficiaries of the Award
respectively in each appeal, for the fatal injuries suffered on account of the
motor vehicle accident. The vehicle was insured with the appellant, hence
the liability has been fixed on it.
2. The appeals do not challenge the quantum of the compensation but
the fixation of liability on the insurer without any determination apropos the
right of recovery against the owner and the driver.
3. On 21.12.2016, this Court had recorded that the respondent
No.3/owner of the vehicle was served on 23.10.2016 but none appeared.
Respondent No.2/driver was represented by a counsel, who had sought time
to address arguments.
4. The insurer had contended that the driver did not possess a valid
driving licence. Their investigator had filed a report and also deposed that
no such driving licence had been issued by the RTO Narnaul, Haryana.
The issue apropos validity of the driving licence was addressed by the
Tribunal as under:-
"16. It is submitted by Id counsel for respdt no.3 that
his client is not liable to pay compensation, as respdt no.l
was having a fake licence and this fact has been proved on
file. Sh. Jitender Dhabhal (R3W1) stated to be Manager of
respondent no. 3 filed affidavit in evidence. According to this
witness, a notices U/o 12 rule 8CPC were sent to driver and
owner of offending vehicle but no reply was filed. Sh. Ajit Pal
Singh as R3W2 is also an employee of respondent no. 3. It is
sworn on oath by this witness in his affidavit that he visited
office of RTO Narnaul to verify driving licence in the name of
respondent no. 1. It was disclosed to him that no such driving
licence was issued in the name of Pradeep (respondent no.
1). His report is Ex.R3Wl/5.
MAC.APP.Nos.651 & 683 of 2016 Page 2 of 4
17. Even if, it is presumed that a legal notice U/o 12
rule 8 CPC was dispatched to said respondents and they did
not file any reply. It does not raise necessary presumption
that respondent no. 1 was having no driving licence.
Respondent no. 3 did not summon record from office of
licencing authority concerned to prove that no driving
licence was issued to respondent no. 1, as relied upon by
latter. Even then, respondent no. 3 will be free to initiate
action against insured i.e. owner or driver if it thinks that
respondent no. 1 had no valid driving licence and this fact
was well within the knowledge of owner i.e. respondent no. 2.
This issue is thus decided in favour of petitioners and against
the respondents."
5. The learned counsel for the appellant submits that the non-
summoning of the records of the Licensing Authority was an error and the
proper procedure was not adopted, however, its effect should not be so
precipitously visited upon the appellant so as to deprive it of the rights of
recovery against the owner and driver of the motor vehicle. She further
submits that the appellant may be granted an opportunity on such terms
which may be considered appropriate by this Court.
6. In the claim petition the compensation has been awarded and is not
challenged. The insurer will pay the compensation apropos third parties, as
awarded. The primary objective of providing relief to victims of motor
accidents has been achieved. However, the actual tort-feasor must be
determined and held accountable. The insurer's lapse in not summoning of
the records from the Licensing Authority would keep the truth buried
forever. This anomaly can be rectified by according the insurer another
occasion to summon the relevant records so that justice is done. In the
circumstances, the Court thinks it just and fair that the cases be remanded
MAC.APP.Nos.651 & 683 of 2016 Page 3 of 4
back to the Tribunal concerned to decide afresh the issue of validity of the
driving license. It is so ordered, subject to payment of costs of Rs.45,000/-
and Rs.25,000/- respectively, to be deposited with the Delhi High Court
Legal Services Authority within two weeks, the impugned order is modified
to the extent that the issue of validity of the driving licence claimed by
respondent No.2 shall be determined by the Tribunal concerned in
accordance with law. The parties shall appear before it on 10.07.2017. The
learned counsel for the parties submit that they will properly and fully assist
the Tribunal on each date whenever the case is listed and shall not ask for
any adjournment whatsoever.
7. The insurer had already deposited the awarded amount alongwith
interest at the rate of 9% per annum with the Tribunal. The amounts so
deposited by the appellants shall be released, if not already done, to the
respective beneficiaries in terms of the Award. Should there be any
shortcoming in satisfying the Award, the appellant shall make good the
same. The statutory deposits shall be refunded to the appellant.
8. The appeals alongwith pending applications stand disposed off in the
above terms.
NAJMI WAZIRI, J.
MAY 22, 2017
sb
