Delhi High Court
The New India Assurance Co Ltd vs Chanan Singh (Deceased) Thr Lrs on 10 October, 2019
KAMLESH KUMAR
18.10.2019 15:06
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 10.10.2019
+ MAC.APP. 279/2018
THE NEW INDIA ASSURNACE CO LTD ..... Appellant
Through: Mr. Gaurav Nair, Adv.
versus
CHANAN SINGH (DECEASED) THR LRS ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J (Oral)
1. This appeal impugns the award of compensation dated 20.01.2018
passed by the learned MACT in Case No. 450464/2016, on the ground that
it did not grant right of recovery to the appellant-insurer against the owner of
the offending-insured vehicle. It is the appellant's case that by notice dated
17.11.2017 it had sought following information from the owner of the
vehicle under Order 12 Rule 8 CPC:
"... Take note that you, the addressees, are required to
produce valid and effective Driving license of Gopal Driver,
Permit & Fitness certificate and Registration Certificate of
Offending Vehicle bearing no. HR-38H-5698(Truck) which
covers on the date of accident i.e. 29.04.2008..."
2. The said letter was never responded to nor were the requisite
documents supplied to the insurer. The owner and driver of the vehicle did
not appear before the learned MACT and they were proceeded ex parte.
The appellant's contention in this regard has been dealt with in the
impugned order as under:
"....20. That, the vehicle in question was insured with R-3
i.e. The New India Assurance Company Ltd., and Ld.
Counsel for the insurance company has argued that there a
(sic) breach of the insurance policy as the fitness and
permit has not been supplied by R-1 and R-2 despite service
of the notice u/o 12 rule 8 of CPC and has also examined
one witness R3W1 but this argument is immaterial on the
ground that in the seizure memo, RC and Insurance policy
has been seized by the IO at the time of investigation and
the offending vehicle was registered with the Transport
Authority, Faridabad, Haryana and the insurance company
ought to have examine (sic) the witness from Transport
Authority, Faridabad, Haryana to prove that the offending
truck was being driven without permit and fitness but no
such witness has been examined or summoned, therefore,
there is no breach of any of the condition of the insurance
policy and, therefore, the insurance company is liable to
pay the compensation amount. Therefore, the insurance
company is, thus, liable to indemnify the insured u/s 149(1)
of MV Act and hence, liable to pay the compensation
amount as awarded by the Court in favour of petitioner/
petitioner (sic)"
3. It is the appellant's contention that the defence taken by it was
legitimate as it would not be liable to pay compensation unless there was a
valid driving licence produced by the driver of the offending-insured vehicle
driving at the time of the motor vehicular accident, as well as the fact that
the vehicle should have been certified to be fit, to ply on public roads. The
non-production of either of the two documents would have to be inferred
adversely against the insured owner. He relies upon the dicta of this Court
in ICICI Lombard GIC Ltd. vs Subhash & Ors., dated 19.01.2016 passed
in MAC.APP. 105/2013, which held as under:
"...4. The contention of the insurance company in appeal is
that the evidence adduced has not been properly appreciated
and that the insurance company could not have done
anything beyond calling upon the owner and driver of the
vehicle through notice under Order 12 Rule 8 CPC to
produce the driving licence, if there was one held by the
driver. Reliance has been placed on the judgment of a
learned Single Judge of this Court in New India Assurance
Company Ltd. vs Sanjay Kumar & ors. ILR 2007 (II) Delhi
733..."
4. What emanates from the preceding discussion is that an insurer has
the right to seek requisite information to determine whether there was breach
of policy condition at the time of the motor-vehicular accident. If there was
no driving licence produced by the driver Gopal, who was allegedly driving
the vehicle when the said accident occurred, the appellant- insurer has every
right to presume that he did not possess any driving licence, as well as the
fact that the offendig vehicle did not possess the requisite permit or fitness
certificate to ply on a public road. The owner of the vehicle was given
ample opportunity to prove otherwise.
5. In the circumstances, the presumption would be that there was breach
of policy condition. Accordingly, the impugned order is modified to the
extent that the appellant- insurer shall have right of recovery of the amount
paid by it to the beneficiaries of the award, against the owner of the vehicle
i.e. Mr. Akhilesh Singh Kasana, Respondent No. 7.
6. The appeal is allowed and disposed off in the above terms. The
statutory amount along with interest accrued thereon be returned to the
appellant.
NAJMI WAZIRI, J
OCTOBER 10, 2019/kk
