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 dispensed to the
claimants/respondent Nos.1 to 3. Learned counsel for the appellant
states that the scope of the appeal is only to the extent of giving
recovery rights to the appellant/insurer from the insured since the
insurer was 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, 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. 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
ascertaining him to produce/provide original driving licence, insurance
policy and permit and photocopy of the registered AD receipt is Ex.
R2W2/4.
6. Learned counsel for the appellant has relied 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, I (2004) ACC 524 (SC)=II
(2004) SLT 115=(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. In this regard, he has also relied upon National Insurance
Company vs. Challa Bharathamma; 2005 (1) T.A.C. 4 (SC) taking the
similar view.
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
not filed a copy of policy No.254001/31/2014/6371 in respect of the
said vehicle for the period from 01.03.2014 to midnight of 28.02.2015.
The copy of the policy of insurance which was relevant at the time to
extend has not seen the light of the day and the appellant has not
placed the best evidence available to them on the record. If the policy
of the insurance for the relevant period of time, been placed on record
by the appellant-insurer, this court would be 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 insurer since the
insurer has failed to prove non-coverage of the geographical area of
Bhutan with regard to the said truck on the date of accidence 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'
