Oriental Insurance Company Ltd vs Bs Bhargav & Ors on 14 August, 2012

[Cites 1, Cited by 4]

Delhi High Court

Oriental Insurance Company Ltd vs Bs Bhargav & Ors on 14 August, 2012

1. The Appellant Oriental Insurance Company Limited seeks recovery rights against Respondents No.2 and 3 for having paid the compensation of `97,565/- along with interest @ 8% per annum in favour of the First Respondent who suffered grievous injuries in a motor vehicle accident which occurred on 06.09.2006.

2. The only ground urged by the learned counsel for the Appellant is that during inquiry before the Motor Accident Claims Tribunal (the Claims Tribunal) it was established that the driving licence Ex.R3W1/C held by the driver Grunam Singh was not genuine. The Claims Tribunal erred in holding that the Appellant did not produce any evidence from the Transport Authority to prove that the driving licence was forged. It is urged that the letter dated 13.08.2009 was produced by the MLO, South Zone and was taken on record by an order of even date passed by the MAC APP 127/2010 Page 1 of 4 Claims Tribunal, yet the said certificate was not considered by the Claims Tribunal.

3. I would say that the Appellant's grievance that the certificate was not looked into is justified but still the Appellant has failed to prove that there was a willful and conscious breach of the terms of the policy entitling the Appellant to avoid the Insurance Policy. In this regard, it would be appropriate to refer to the pleadings of the parties.

4. A Claim Petition was filed by the First Respondent in March, 2007. A joint written statement was filed by Respondents No.2 and 3 (Respondents No.1 and 2 before the Claims Tribunal) on 01.11.2007 wherein the accident was admitted but the negligence on the part of the driver was denied. The Appellant also filed written statement on that very day, that is, on 01.11.2007 wherein a general defence was taken that if the driver was not holding any valid and effective driving licence and/or there was no valid and effective permit in respect of the vehicle at the time of the accident, the Appellant would not be liable to pay the compensation to the First Respondent. The written statement was never amended on any subsequent date to take any specific plea that the driving licence held by the driver was fake. A notice under Order XII Rule 8 CPC dated 27.04.2009 Ex.R3W1/A was served upon Respondent No.3 (the owner) whereby he was directed to produce the original insurance policy, permit and the driving licence of the driver.

5. It may be noticed that after filing the written statement, Respondents No.2 and 3 preferred not to contest the proceedings and they were proceeded ex-parte by order dated 19.02.2009.

MAC APP 127/2010 Page 2 of 4

6. A perusal of the Trial Court record reveals that Respondent No.3 Harman Pal Singh (owner of the offending vehicle) was produced by the Appellant Insurance Company as their own witness. He deposed as under:-

"I have received the notice under 12 rule 8 CPC the copy of the same is Ex.R3W1/A. In compliance of the said notice today I am filing the photocopy of the cover note of the insurance the same is Ex.R3W1/B and the photocopy of my driver Gurnam Singh driving license is Ex.R3W1/C and the photocopy of the permit of the stage carriage for the relevant period is Ex.R3W1/D. Driver Gurnam Singh is not related to me and he was kept as a driver just before 4 or 5 months of the date of accident. The age of the driver was 32 years at that time.

XXXXX by Sh. Yogesh Nirula, Adv. for the Petitioner. It is correct that I have verified the license of the driver before keeping him as a driver of my vehicle."

7. No question was asked whether he was aware that the driving licence held by the driver was fake. In cross-examination by the Petitioner, the witness deposed that he verified the driving licence before employing him as a driver of his vehicle. It was only thereafter that P.R. Bansal was examined as R3W2 by the Appellant Insurance Company who stated that as per report Ex.R3W2/E submitted by their investigator, the driving licence has been found to be not genuine. It may be noticed that on 11.05.2009 while examining the owner as R3W1, the Appellant Insurance Company was aware that the driving licence was not genuine, yet it did not put any question as to whether the licence was verified and if any precaution was taken by him.

8. It is urged by the learned counsel for the Appellant that once the Appellant proved that the licence is fake the onus shifts on the owner to MAC APP 127/2010 Page 3 of 4 explain as to what precautions did he take to ensure that there is no breach of the terms of policy. In the instant case, it was only on 11.05.2009 after examining the owner as R3W1, the Insurance Company came out with the plea that the driving licence was not genuine.

9. As stated above, the Appellant never amended its written statement and never informed the owner that the driving licence was not genuine so as to seek his explanation. I have earlier extracted the owner's testimony as R3W1. He bonafidely produced the copy of the driving licence and copy of the permit in respect of the vehicle which caused the accident. The third Respondent was simply asked to produce the driving licence which he did and in the absence of any specific plea or information given to the third Respondent that the driving licence was not genuine, he was not required to do anything further. It cannot be said that the owner was negligent in employing the driver or for that matter he willfully committed the breach of the terms of the policy.

10. The Appeal is devoid of any merit; the same is accordingly dismissed.

11. The statutory deposit of `25,000/- shall be refunded to the Appellant Insurance Company.

12. Pending Applications stands disposed of.

(G.P. MITTAL) JUDGE AUGUST 14, 2012 vk MAC APP 127/2010 Page 4 of 4

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Delhi High Court