Delhi High Court
Royal Sundaram Alliance ... vs Jagat Prasad & Ors on 19 September, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 19th September, 2017
+ MAC.APP. 630/2012 and CM 10329/2012
ROYAL SUNDARAM ALLIANCE INSURANCE
CO LTD ..... Appellant
Through: Mr. Pankaj Gupta for Ms. Suman
Bagga, Advocate
versus
JAGAT PRASAD & ORS ..... Respondents
Through: Mr. Saurabh Kansal, Advocate for
R-1 to 6
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Mahender Pal died on account of the injuries suffered in a
motor vehicular accident that occurred on 12.06.2010 due to the
negligent driving of a motor vehicle described as trailor, bearing
registration no.HR-55J-8155 (offending vehicle), by Ramesh (seventh
respondent), it being a vehicle registered in the name of Amit A.
Bamb (eighth respondent) and admittedly insured against third party
risk with the appellant insurance company (insurer). The first to sixth
respondents (collectively the claimants) instituted accident claim case
(MACT 136/11/10) on 13.08.2010 seeking compensation under
Section 166 of the Motor Vehicles Act, 1988 impleading the said
driver, registered owner and the insurer of the offending vehicle as
party respondents. Noticeably, the driver and the registered owner,
they being seventh and eighth respondents in the appeal, inspite of
notice, suffered the proceedings before the tribunal ex parte.
2. During the inquiry, the insurer took up the plea that there was a
breach of the terms and conditions of the insurance company as the
driving licence, photocopy (Ex. R3W1/F) of which had been handed
over to the investigating police officer, was found fake, report (Ex.
R3W1/E) of the investigating police officer affirming this position,
this, in turn, on the report (Ex. R3W1/G) of the Licencing Authority,
Gwalior, M.P. to which the said document purported to relate.
3. The Motor Accident Claims Tribunal (Tribunal), by judgment
dated 27.02.2012, upheld the claim and awarded compensation in
favour of the claimants fastening the liability on the insurer rejecting
its plea for exoneration or grant of recovery rights on the ground that
report of the investigating police officer was for a limited purpose and
that the insurer had not mustered requisite evidence to prove that the
licence was fake.
4. The appeal by the insurer is pressed only to seek recovery rights
on the basis of above noted facts referring in this context to the
evidence showing that the insurer had issued notice (Ex. R3W1/A)
under Order XII Rule 8 of the Code of Civil Procedure, 1908, sent by
post vide receipts (Ex. R3W1/B & C), calling upon the driver and
owner to produce the driving licence to which there had been no
response.
5. The seventh and the eight respondents inspite of being served,
have chosen not to appear even at the stage of appeal and are thus set
ex parte.
6. Having heard the learned counsel for the insurer and having
perused the record, this court finds that the insurer had brought home
its case of breach of the terms and conditions of the insurance policy.
The report of the police had brought on record before the tribunal
material indicating that the document in question (driving licence) was
forged and fabricated. The insurance company, by issuing and serving
the notice under Order XII Rule 8 CPC, duly proved by Puneet Gupta
(R3W1), the Regional Head (Legal and TP claims), had called upon
the seventh and eighth respondent to produce the driving licence, if
any, validly held by the seventh respondent. By taking such steps, the
insurer had done what it could do in the given facts and circumstances.
With such evidence having come on record, the burden to prove facts
to the contrary by bringing in positive evidence vis-à-vis the licence
held by the seventh respondent had shifted on to him and the eighth
respondent. Since the said respondents failed to give any reply to the
notice under Order XII Rule 8 CPC to produce any evidence during
the inquiry before the tribunal, or even at the stage of appeal, the only
inference that can be drawn is that there was no valid or effective
driving licence held by the seventh respondent on the relevant date.
[see New India Assurance Co. Ltd. Vs. Sanjay Kumar & Ors., ILR
2007 (II) Delhi 733 and ICICI Lombard General Insurance Co. Ltd.
Vs. Subhash & Ors., MACA 105/2013, decided on 19.01.2016].
7. The appeal is thus allowed to the effect that the insurance
company will have the rights to recover the total compensation paid
(inclusive of the principal amount and the interest) to the claimants in
terms of the impugned judgment from the eight respondent and for
such purposes to take out appropriate proceedings before the tribunal.
8. By order dated 31.05.2012, the insurance company had been
directed to deposit the awarded amount with interest with UCO Bank
as a pre-condition to the stay against the execution. The said amount
was directed to be held in fixed deposit receipt. By subsequent order
dated 17.08.2012, sixty percent (60%) of the said deposited amount
was allowed to be released to the claimants. The balance lying in
deposit shall now be released to the claimants.
9. The statutory deposit shall be refunded to the appellant /
insurance company.
10. The appeal and the pending application are disposed of in above
terms.
R.K.GAUBA, J.
SEPTEMBER 19, 2017
yg
