National Insurance Co. Ltd. vs Raja Ram Yadav & Ors.
2017 Latest Caselaw 6165 Del

$~R-402
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Decided on: 3rd November, 2017
+      MAC APPEAL 448/2014

       NATIONAL INSURANCE CO. LTD.         ..... Appellant
                    Through: Mr. D.K. Sharma, Advocate.

                             versus

       RAJA RAM YADAV & ORS.                    ..... Respondents
                   Through: Nemo.

CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA

                         JUDGMENT (ORAL)

1. The Appellant (insurer) was one of the party respondents before the Motor Accident Claims Tribunal in accident claim case (MACT No.201/11/10) instituted by the first and second respondents (collectively, the claimants) on 04.09.2010 seeking compensation on account of death of their son (Madan) in motor vehicular accident that had taken place on 16.03.2009 due to involvement of truck bearing registration no. HR-38C-3240 (the truck), it being driven at the relevant point of time by the third respondent, the fourth respondent being the registered owner at whose instance the appellant had issued the insurance cover. The claim of the first and second respondents was pressed under Section 163A of Motor Vehicle Act, 1988. The tribunal awarded compensation in the total sum of Rs.4,31,166/- in their favour and directed the appellant to pay the said amount with

interest at 7.5 per cent per annum. During the course of contest the appellant had taken the plea that there was a breach of terms and conditions of the insurance policy as the driver (third respondent) was not holding a valid or effective driving license. It served a notice under Order XII Rule 8 of the Code of Civil Procedure, 1908 (CPC) calling upon the fourth respondent the owner of the vehicle, to produce the relevant documents, such notice (Ex.R2W1/D3) having been proved upon, it being admitted by the fourth respondent who appeared as his own witness (R2W1), on the strength of his affidavit (Ex.R2W1/A).

2. It may be mentioned here that the registered owner (R2W1) had taken the position that the driving license of the third respondent had been checked at the time of he being engaged and further that though the copy of the said document had been retained it had been misplaced. The tribunal accepted this contention of the registered owner and declined to grant any recovery rights to the insurance company holding it liable to pay the compensation, referring in this context to decision taken by it in an earlier judgment dated 03.07.2010 a connected claim case (MACT No.528/2008) in a case of Mahalakshmi & Ors. v. Raju & Ors., it also have arisen out of the same accident wherein similar plea of the insurance company had been rejected.

3. The appeal of the insurance company entertained to consider its plea for recovery rights was put in the list of regulars as per order dated 14.09.2016. When it is called out for hearing, there is no appearance on behalf of the respondents.

4. The learned counsel for the appellant places on record, for consideration, a copy of the judgment dated 21.09.2017 of this Court in MACT 712/10 National Insurance Company Ltd. vs. Mahalaxmi & Ors. which was a matter arising out of the judgment in MACT No.528/2008 referred to above, both claim cases including the one at hand, having arisen out of the same motor vehicular accident. By the judgment dated 21.09.2017 in MAC No.712/2010, this Court rejected the contention of the registered owner Lucky Grover (fourth respondent), observing thus:-

"5. Having heard the learned counsel for the insurer and having gone through the record, this Court finds substance in the contention urged by the insurance company. The insurance company had called upon the registered owner the sixth respondent by notice dated 15.11.2002 (Ex.RW1/2) to produce the driving licence of the fifth respondent. The said notice had been sent to the registered owner vide postal receipt (RW1/3) at his correct address. It had been duly delivered at the said address as per acknowledgement card (Ex.RW1/5). No response was given to such notice. Rather, the record reveals that the owner did not take any interest till it reached the stage of his evidence when, for the first time, by his affidavit (Ex.R2W1/A) sworn on 06.02.2010, he came up with the theory of having seen the driving licence of fifth respondent at the time of he being engaged for the purpose. During cross-examination, he claimed that he had retained a copy of the licence which had been seen, but was unable to produce any such document.

6. It is clear that the position taken by the sixth respondent has no legs to stand on. The insurance company has, thus, proved by evidence that the fifth respondent was not holding a valid or effective driving licence. In the given facts and circumstances, it has to be inferred that the sixth respondent had not exercised due diligence while engaging

fifth respondent as driver, this constituting breach of terms and conditions of the insurance policy. In the consequence, recovery rights are hereby granted in favour of the appellant insurance company."

5. Since the present case arises out of the same accident and against common set of facts, similar view is taken and recovery rights are granted in favour of the appellant against the fourth respondent.

6. By order dated 13.05.2014, the insurance company had been directed to deposit the entire amount with the Registrar General and out of which 80% to be released in favour of the claimants. The Registry shall release the balance amount to the claimants in terms of the judgment of the tribunal.

7. The Statutory amount shall be refunded.

8. For enforcement of the recovery rights, the insurance company may approach the tribunal.

9. The appeal is disposed of in above terms.

R.K.GAUBA, J.

NOVEMBER 03, 2017 rb