Delhi High Court
New India Assurance Co Ltd vs Beena Yadav And Ors on 22 November, 2017
$~R-537
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 22nd November, 2017
+ MAC.APP.729/2012
NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. J.P.N. Shahi, Advocate.
versus
BEENA YADAV AND ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. On 31.08.2008, a motor vehicular accident had occurred involving
negligent driving of motor vehicle described as TATA 407 bearing
registration No. UP-16-3227 and as a result of injuries suffered
Sagar Yadav died. His wife and six other members of the family
dependent upon him (they being first to seventh respondents,
collectively, the claimants) instituted accident claim case (Suit No.
741/2008) on 24.10.2008. The Tribunal held inquiry and returned a
finding that the accident had been caused due to negligent driving of
the said vehicle by Arbind Giri (the driver and eighth respondent in
the appeal). As per the material available before the Tribunal, the
vehicle was registered in the name of Sudhir Kumar Nagar (the
owner and ninth respondent in the appeal), at whose instance it was
insured against third party risk for the period in question with the
appellant (the insurer). The insurer while resisting the claim had
taken up the defence of breach of terms and conditions of the
insurance policy on the ground that the driver did not hold a valid or
effective driving licence at the relevant time. This plea, however,
was rejected by the Tribunal and by judgment dated 09.04.2012,
liability to pay compensation thereby determined was placed at the
door of the insurer.
2. The insurer reiterates the above plea by the appeal at hand seeking
recovery rights. It had examined through inquiry before the
Tribunal, its senior assistant Mr. S.K. Arora (R3W1) to prove that
the document purported to be the driving licence which had been
handed over by the eighth respondent to the police, was a fake
document and further that in spite of notice under Order XII Rule 8
of the Code of Civil Procedure, 1908 (CPC), neither the eighth
respondent nor the ninth respondent adduced any evidence to prove
any valid or effective driving licence. The Tribunal was not
impressed with the said evidence, inter alia, for the reason, the
investigator on whose report (Ex.R3W1/B) reliance had been
placed, had not been examined.
3. During the pendency of the appeal, with permission from the court,
the appellant led further evidence to examine Mr. Bhoop Narayan
Singh (AW-1) and Mr. Hari Om Morya (AW-2) both officials from
the Regional Transport Authority, Agra. In spite of the notice, the
eighth or ninth respondents have not contested the said appeal.
4. At the hearing, there is no appearance on behalf of eighth or ninth
respondent. The matter has been heard with the assistance of
counsel for the insurance company and by perusal of Tribunal's
record.
5. The evidence of the two above mentioned witnesses examined
during the pendency of the appeal proves that the document relied
upon as being the driving licence of the eighth respondent, was
issued in the name of one Kamal Kishore Sharma. Apparently the
document in question was fake. Witness R3W1 examined during
the inquiry had proved notice under Order XII Rule 8 CPC (Ex.
R3W1/C). It was also proved by the said witness that there was no
response to the said notice. This is confirmed by the proceedings
recorded before the Tribunal. In these circumstances, the natural
inference is that eighth or ninth respondents are not in a position to
show existence of any valid or effective driving licence of eighth
respondent.
6. Thus, the insurance company has brought home its case for grant of
recovery rights which are hereby granted in its favour and against
the eighth and ninth respondent who are held liable jointly and
severally to pay the compensation. For enforcement of such rights,
the insurance company will have the liberty to approach the
Tribunal with appropriate execution application.
7. The statutory deposit shall be refunded.
8. The appeal stands disposed of with these observations.
R.K.GAUBA, J.
NOVEMBER 22, 2017
srb
