Delhi High Court
The Oriental Ins. Co. Ltd. vs Rina Devi & Ors. on 7 September, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 7th September, 2017
+ MAC APPEAL No. 922/2014
THE ORIENTAL INS. CO. LTD. .... Appellant
Through: , Adv.
versus
RINA DEVI & ORS. ..... Respondents
Through: Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The motor vehicular accident that occurred on 19.03.2008 in the
area of police station Najafgarh, Delhi, involved negligent driving of
truck bearing registration no. HR-63A-2688 by the third respondent, it
being registered in the name of fourth respondent at whose instance
the appellant insurance company had issued insurance policy covering
third party risk for the period in question, the accident resulting in
death of Subhash, husband of the first respondent and son of the
second respondent (collectively, the claimants). Accident claim case
(MACT no. 771A/2008) was instituted by the claimants on
08.05.2008, impleading the appellant, third and fourth respondents as
parties. After inquiry, the tribunal by judgment dated 13.08.2014,
awarded compensation fastening the liability on the appellant rejecting
its plea of breach of terms and conditions of the insurance policy
which had been raised against the backdrop of submission that the
vehicle in question was not covered by a valid permit for Delhi where
the accident had taken place.
2. The appeal at hand was filed by the insurance company raising
various contentions including computation of the compensation. By
order dated 14.10.2014, while entertaining the appeal limited to the
issue of recovery rights against the fourth respondent (the registered
owner of the vehicle), all other contentions of the insurer were
rejected. In this view, this judgment will be read as one passed in
continuation of the order dated 14.10.2014.
3. The fourth respondent inspite of service has failed to appear. It
is noted that he had suffered the proceedings before the tribunal ex-
parte.
4. There is merit in the contention of the insurance company about
the breach of terms and conditions of the insurance policy. It had led
evidence before the tribunal by examining V.D. Talwar (R3W1) its
administration officer, inter alia, to prove notice under Order 12 Rule
8 of the Code of Civil Procedure, 1908 (CPC) having been issued to
the driver and owner of the offending vehicle calling them upon to
produce the relevant document including the permit. The witness
proved that notices were sent, inter alia, to the fourth respondent and
that there was no response thereto. The tribunal, however, short-
shrifted the said submission by observing that the insurer should have
been examined the advocate under whose signature the notice has
been sent. This cannot be accepted. There is formal proof of notice
having been issued and sent to the respondents at their addresses. The
presumption of service coupled with proof of there being no response
to the insurance company at whose instance the notices had been sent
and the fact that the fourth respondent, particularly, shied away from
participation in the inquiry or even at the stage of appeal, leads to
adverse inference and leaves no room for doubt that the vehicle was
not covered by any valid permit.
5. Thus, the contention of the insurance company is accepted. It is
granted recovery rights against the fourth company i.e. the registered
owner of the vehicle. For enforcement of such recovery rights, it may
take out appropriate proceedings before the tribunal.
6. The appeal is disposed of in above terms.
7. The statutory deposit shall be refunded.
R.K.GAUBA, J.
SEPTEMBER 07, 2017
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