Delhi High Court
National Insurance Company Ltd. vs Jang Singh & Ors. on 15 November, 2017
$~R-484
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th November, 2017
+ MAC APPEAL 381/2012
NATIONAL INSURANCE COMPANY LTD. ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
JANG SINGH & ORS. ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. By judgment dated 25.01.2012, the Motor Accident Claims
Tribunal while deciding the accident claim (Case No.679/2009) filed
for and on behalf of the first respondent (claimant) on 28.08.2009
awarded compensation in his favour in the sum of Rs.3,24,325/- with
interest @ 7.5% p.a. on account of injuries suffered in motor
vehicular accident that occurred on 04.08.2009 due to negligent
driving of motor cycle bearing No. DL-4S-AL-6146 (motorcycle) by
the second respondent (the driver), and fastened the liability to pay on
the appellant (insurer), it concededly having issued an insurance
policy covering third party risk in respect of the motorcycle at the
instance of its registered owner, the third respondent (the owner),
rejecting its plea of breach of terms and conditions of the insurance
policy.
2. The appeal is pressed by the insurer only to reiterate that it had
been proved before the tribunal, with no contest, that the driver did not
hold a valid or effective driving license at the relevant time and,
therefore, at least recovery rights should have been granted against the
second and third respondents, they being the driver and owner
respectively of the motorcycle.
3. The second and third respondents did not appear in spite of due
service in the appeal. The record of the tribunal would show that
when the aforesaid plea was raised by the insurer, particularly at the
stage of evidence, the driver and owner would not participate. No
evidence was led on their behalf. On the other hand, the insurer had
examined Shiv Raj Kanwal (R3W1) its Assistant Manager, who
deposed on the strength of his affidavit (Ex.R3W1/A). The witness
while conceding that an insurance policy had been issued at the
instance of the third respondent, proved that the notice under Order
XII Rule 8 of the Code of Civil Procedure, 1908 (CPC) had been
issued (vide Ex.R3W1/1) and sent both to the registered owner (third
respondent) as also the driver (the second respondent) by post
(Ex.R3W1/2), the notice addressed to the third respondent, however,
having returned (Ex.R3W1/2A) with report that he had left the place
without forwarding address.
4. The insurance company also relied on the report of
investigation by the police (Ex.R3W1/4) according to which the
second respondent (the driver) had been prosecuted, inter alia, for the
offence under Section 3 read with Section 181 of Motor Vehicles Act,
1988 on the allegations that he was not holding a valid or effective
driving license at the relevant point of time.
5. The Tribunal was not satisfied with the aforementioned
evidence for the reason that the insurance company had failed to show
that the driver had been convicted for the said offence under Section 3
read with Section 181 of the Motor Vehicles Act, 1988.
6. In the considered view of this Court, the approach of the
Tribunal was wholly erroneous. The insurer could only show that it
had made efforts to secure the confirmation from the owner or driver
of the offending vehicle as to the due authorization of the driver to be
at the wheels of the offending vehicle. It had sent the notice under
Order XII Rule 18 CPC to the registered owner at the address given in
the insurance policy. It did not have to send the same to any other
address. It could not be expected to go on a wild goose chase to trace
out the owner. Be that as it may. Since the owner and the driver had
due notice of the pending inquiry before the tribunal, it was their
bounden duty to participate. They did not contest the evidence led by
the insurance company which, in the facts and circumstances, per
force, had to be negative. The positive evidence that the driver did
hold a valid or effective driving license could only be mustered and
presented by the driver or owner. Since they have consistently
omitted to participate, the natural inference is that they are unable to
show that the driver did hold such a valid or effective driving license.
7. The defence of the insurance company cannot be contingent
upon the result of the criminal prosecution in the corresponding case.
8. In the foregoing facts and circumstances, the appeal is allowed.
The insurance company is granted recovery rights against the second
and third respondents. For enforcement of such rights it may approach
the tribunal by appropriate execution application.
9. By order dated 13.04.2012 the insurance company was directed
to deposit the entire awarded amount with the Registrar General. By
order dated 03.12.2012, the said deposited amount was permitted to be
released to the claimant. No further directions therefore are called for
in this regard.
10. Statutory amount shall be refunded.
11. The appeal is disposed of in above terms.
R.K.GAUBA, J.
NOVEMBER 03, 2017
rb
