Delhi High Court
Oriental Insurance Co. Ltd. vs Amarjeet Kaur & Ors. on 14 February, 2019
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 14.02.2019
+ F.A.O.No.144/2016 & C.M. No.11909/2016
ORIENTAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. L.K. Tyagi, Advocates.
Versus
AMARJEET KAUR & ORS. ....Respondents
Through: Mr. R.K. Nain & Mr. Ashish Tilwani,
Advocates for R-1 to 3.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
1. The impugned order passed by the Commissioner for
Employees Compensation ('CEC') dated 17.02.2016 allowing the
claim of the legal representatives of the deceased Sukhdev Singh @
Sukhbir Singh for compensation, is the subject-matter of challenge in
this appeal by the insurer of the vehicle in question, that is, truck
No.HR-38-N-3965.
2. The brief facts of the case are that the deceased Sukhdev Singh
@ Sukhbir Singh, who was employed as a driver on truck No. HR-38-
N-3965 by respondent No.4, was taking the said truck on 31.03.2012
to Bhutan. Due to stress and strain of heavy and long duty, he died in
the said truck in the sitting position. The said truck, owned by
respondent No.4, was admittedly insured with the appellant vide cover
note No.1337117 (policy No.254001/31/2012/7251) for the period
from 01.03.2012 to midnight 28.02.2013. After giving opportunities
to the parties to adduce their evidence and hearing the arguments, the
'CEC' has awarded a compensation of Rs.5,42,240/- with interest @
12 per cent per annum in favour of respondent Nos.1 to 3 w.e.f.
30.04.2012 till realisation. Since the said truck was insured, the
appellant was directed to deposit the awarded amount within 30 days
with the 'CEC'. However, in view of the stand taken by the appellant
that the respondent No.4 has not paid additional premium of Rs.500/-
for the said truck to extend the geographical area of Bhutan, the 'CEC'
has granted liberty to the appellant to file a separate case before the
appropriate forum to recover the compensation from the employer,
that is, respondent No.4 herein in case there is any violation of the
terms and conditions of the insurance policy.
3. Admittedly, the amount of the award has been deposited by the
appellant with the 'CEC' and has been disbursed to the
claimants/respondent Nos.1 to 3. Learned counsel for the appellant
states that he limits the scope of the appeal only to the extent of giving
them recovery rights of the amount paid by them from the insured
since they are not liable to make the payment as the insured has not
paid additional premium of Rs.500/- to get the geographical area of
the policy extended to Bhutan where the deceased died during the
course of the employment under stress in the vehicle in question.
4. I have heard the learned counsel for the parties.
5. Learned counsel for the appellant has placed reliance on the
deposition of Mr. Abhishek Tripathi, Administrative Officer, who had
testified that they have issued the policy No.254001/31/2012/7251
valid from 01.03.2012 to 28.02.2013 in respect of truck bearing No.
HR-38-N-3965 in the name of Narender Singh (respondent No.4). He
further testified that as per Section 7 of the India Motor Tariff
Endorsement vide IMP.1, for extension of geographical area, the
owner of the vehicle has not deposited the additional premium of
Rs.500/- as per GR.4. He stated that accident had taken place at RBP,
Division-III, Phuentsholling, Bhutan, outside India and insurance
policy does not cover the accident in question. He proved the copy of
policy of insurance Ex. RW 2/A, Section 7 of India Motor Tariff
Endorsements IMT.1 Ex. RW 2/B, a copy of notice sent to respondent
No.4 Ex. RW 2/C asking him to produce/provide original driving
licence, insurance policy and permit and photocopy of the registered
AD receipt Ex. R2W2/4.
6. Learned counsel for the appellant rely upon the judgment of the
Supreme Court in Shamanna & Anr. Vs. Divisional Manager The
Oriental Insurance Co. Ltd. & Ors.; III (2018) ACC 724 (SC) to
contend that for the purpose of recovering the amount from the owner
of the vehicle, the insured shall not be required to file a suit and it may
initiate the proceedings before the executing court as if the dispute
between the insurer and the owner was the subject-matter of
determination before the tribunal and the issue is decided against the
owner and in favour of the insurer. Para 13 of the said judgment
reads as under :-
"So far as the recovery of the amount from the owner
of the vehicle, the insurance company shall recover as
held in the decision in Oriental Insurance Co. Ltd. V.
Nanjappan and Others, (2004) 13 SCC 224 where this
court held that "...... that for the purpose of recovering
the same from the insured, the insurer shall not be
required to file a suit. It may initiate a proceeding
before the concerned Executing Court as if the dispute
between the insurer and the owner was the subject
matter of determination before the Tribunal and the
issue is decided against the owner and in favour of the
insurer."
7. Similar view was earlier taken by the Hon'ble Supreme Court in
National Insurance Company vs. Challa Bharathamma; 2005 (1)
T.A.C. 4 (SC).
8. However, the insurer has failed to place on record the relevant
copy of the policy of insurance bearing No.254001/31/2012/7251 for
the period from 01.03.2012 to 28.02.2013. Rather Mr. Tripathy has
tendered in evidence a copy of policy No.254001/31/2014/6371
Ex.RW2/A in respect of the said vehicle for the subsequent period
from 01.03.2014 to midnight of 28.02.2015. The copy of the policy of
insurance for the relevant period has not seen the light of the day and
the appellant has withheld the best evidence available to them on the
record. Had the policy of the insurance for the relevant period of time,
been placed on record by the appellant-insurer, this court would have
been in a position to adjudicate whether the geographical area of
Bhutan was extended or not by not making payment of Rs.500/- to the
appellant/insurer by respondent No.4, owner. Therefore, under
Section 114 (g) of the Evidence Act, an adverse inference has to be
drawn against the appellant which has failed to prove non-coverage of
the geographical area of Bhutan with regard to the said truck on the
date of accident by not producing the relevant policy of insurance.
9. In view of this discussion, I do not find any merit in the appeal
as the appellant company has failed to prove its entitlement to recover
the amount from the insured/respondent No.4 by not producing the
policy of insurance for the relevant period. The appeal along with
application, being C.M. No.11909/2016, is dismissed accordingly.
Record of 'CEC' be sent back.
(VINOD GOEL)
JUDGE
FEBRUARY 14, 2019
'AA'
