Delhi High Court
Oriental Insurance Co. Ltd. vs Gian Singh & Ors. on 6 November, 2017
$~403
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 06th November, 2017
+ MAC APPEAL 926/2011
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Praveen Sehrawat, Mr.
Abhishek Kumar and Mr. Vijay
Singh, Advocates
versus
GIAN SINGH & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 10.08.2004, a motor vehicular accident took place wherein a
pedestrian Tirath Ram Arora was hit by a motor vehicle described as
truck Swaraj Mazda bearing registration no.HP-64-0325 (the truck)
resulting in his death. An accident claim case (case no.1060/2008) was
instituted on 01.06.2006 by his sons (third and fourth respondents)
seeking compensation under Section 166 of the Motor Vehicles Act,
1988 on the averments that death had occurred due to the accident
which had been caused on account of the rash driving of the truck by
the second respondent (driver). The truck was registered on the
relevant date in the name of the first respondent (registered owner) at
whose instance it was insured agaisnt third party risk for the period in
question with the appellant (insurer). The said driver, owner and
insurer were impleaded as parties by the first and second respondents
(the claimants) before the Motor Accident Claims Tribunal (Tribunal).
2. Upon completion of the inquiry, the tribunal, by its judgment
dated 09.08.2011, awarded compensation fastening the liability to pay
on the insurer (the appellant). It may be mentioned here that the first
and second respondent (i.e. the owner and the driver of the offending
vehicle), though served with the notices, had not filed any written
statements and, thus, their right to do so was closed by the tribunal by
order dated 12.05.2009.
3. The insurer had taken the plea of the breach of terms and
conditions of the insurance policy on the ground that the driver
(second respondent) was not in a possession of a valid or effective
driving licence at the relevant point of time. It led evidence, inter alia,
by examining Promila Bisht (R3W1), an officer of the company, to
prove that it had issued a notice under Order 12 Rule 8 of the Code of
Civil Procedure, 1908 (CPC) on 16.07.2010 (Ex. R3W1/1) to the
driver with similar notice of the same date (Ex. R3W1/4 and R3W1/3)
respectively. The tribunal declined to grant any relief to the insurer
observing that mere proof of such notices having been issued or
reliance on the record of the police in the corresponding criminal case
showing prosecution of the second respondent (driver) for offence
under Section 3 read with Section 181 of the Motor Vehicles Act, 1988
on the accusation of he having driven the vehicle without any valid or
effective driving licence was not sufficient.
4. The appeal at hand is pressed only to seek recovery rights, the
plea of breach of terms and conditions of the insurance policy being
reiterated.
5. It is noted that the first and second respondents inspite of service
with notices on the appeal have failed to appear. It is also noted that
the said respondents had been served by publication before the tribunal
and, thereafter, the inquiry was concluded observing that they have
failed to appear or file any written statement inspite of the opportunity
granted.
6. The learned counsel for the insurance company has been heard
and with his assistance the record of the inquiry before the tribunal
perused.
7. It is noted that the witness examined by the insurer had also
referred to the postal articles (Ex. R3W1/6) and R3W1/5) respectively
which had been sent to the first and second respondents in the context
of notice under Order 12 Rule 8 of the Code of Civil Procedure, 1908
(CPC), both such postal articles having returned with the reports that
the addressees could not be found at the given addresses. In these
circumstances, the insurance company cannot rely on adverse inference
being drawn from the fact of there being no response to the notices
under Order 12 Rule 8 CPC.
8. The learned counsel for the insurer submits that the first and
second respondents cannot escape the liability by avoiding appearance
by evading service of notices. He pointed out that the material placed
before the tribunal showed prosecution of the second respondent on the
charge of he having driven the vehicle without any valid or effective
driving licence. He, thus, sought directions to the tribunal for a fresh
inquiry into the issue submitting that the absence of any positive proof
of a valid driving licence in a fatal accident claim case is far too
serious and cannot be given a go-by.
9. In the above facts and circumstances, the prayer of the counsel
for the insurer is accepted. The matter is remitted to the tribunal for
further inquiry into the plea of recovery rights against the first and
second respondents (owner and driver of the offending vehicle). It will
be just and proper that the tribunal takes all measures to secure the
presence of the said party respondents, if possible, by taking the
assistance of the criminal court, or of the police, which would have
investigated the crime registered relating to the fatal accident. For
such purposes, the insurer shall appear before the tribunal on
06.12.2017. Needless to add, the tribunal will not only give
opportunity to the said respondents to file reply but also give
opportunity to both sides to lead additional evidence, if any, before
taking a fresh decision.
10. By order dated 19.10.2011, the insurance company had been
directed to deposit the entire awarded amount with the Registrar
General. By order dated 12.12.2012, fifty percent (50%) of such
deposited amount was released to the claimants. The Registry shall
release the balance to the claimants in terms of the impugned judgment
of the tribunal.
11. The statutory amount shall be refunded to the insurer.
12. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 06, 2017
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