Full Judgment Text
$~R-180
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Decided on: 11 September, 2017
+ MAC.APP. 105/2010
ORIENTAL INSURANCE COMPANY LIMITED
.... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
BRIJ NANDAN PANDIT & ORS. ..... Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. Naval Kishore, a bachelor, then aged 26 years old, was driving
truck bearing registration No.HR-38J-0744, on 24.05.2006 on the
Bombay-Nagpur-Highway when it came to be involved in a collision
against another truck bearing registration No.CG-04G-3863,
admittedly insured against third party risk for the period in question
with the appellant insurance company (insurer), the accident resulting
in death of Naval Kishore, which became the subject matter of the
investigation of the FIR No.59/2006 for offences punishable under
Sections 304-A/334/279/338/400/184 of Indian Penal Code, 1806
(IPC) registered with Police Station Muktai Nagar, District Jalgaon,
Maharashtra. Noticeably, the third respondent herein was the driver of
the said truck, it being registered in the name of the fourth respondent,
MAC Appeal No. 105/2010 Page 1 of 4
at whose instance the appellant insurance company had issued the
insurance policy.
2. The parents of the deceased Naval Kishore, they being first and
second respondents (collectively, the claimants) had instituted
accident claim case (Suit No.449/06) on 17.08.2006. The tribunal held
inquiry and on the basis of evidence led, by judgment dated
22.10.2009, found the third and fourth respondents herein to be jointly
and severally liable, they being the principal tortfeasor and the person
vicariously liable respectively.
3. The tribunal awarded compensation in the sum of Rs.3,05,216/-,
fastening the liability on the appellant to indemnify and pay with
interest to the claimants.
4. The insurer, by the appeal at hand, has questioned the judgment
of the tribunal and submits that in absence of an eye witness, the
findings on the issue of negligence could not have been returned. It is
also the contention of the insurer that on the basis of evidence led by it
through two witnesses Ashok Sharma (R3W1) and Rathindre Mohan
Goswami (R3W2), the tribunal should have held that there was breach
of terms and conditions of the insurance policy and exonerated the
insurer. The prime ground urged in this regard is that the driving
licence which was valid for the period 21.10.2005 to 20.10.2008 was a
licence that had been renewed on the basis of document previously
presented to the transport authority as a licence earlier issued which,
however, upon verification, was found to be fake.
MAC Appeal No. 105/2010 Page 2 of 4
5. It is not correct on the part of the insurer to contend that if there
is no eye witness available, an accident claim case cannot be
maintained. The involvement of the offending vehicle or the
negligence on the part of its driver can be brought home even in
absence of the eye witness account. The principle of res ipsa loquitor
can be invoked to show from the facts and circumstances which are
proved by other material on record the involvement of the vehicle or
negligence on the part of its driver. This is precisely what has been
the basis of the findings, returned in the present case which
consequently do not call for any interference.
6. The other issue is covered by a number of judgments of this
court in similar fact situation including the one passed in M/S The New
India Assurance Company Limited versus Zakir Hussain & Anr,
th
CM(M) 1104/2013, decided on 12 July, 2017, the observations in
paras 3 and 4 being of import are extracted as under:-
“3. It appears that from the evidence led during the
inquiry it was brought out that the driving license had been
obtained by the first respondent on the basis of a document
which was fake. The said driving license which had been
obtained, however, had been renewed from time to time, the
renewal and validity having been confirmed by the licensing
authority. The obtaining of license on the basis of fake
document was an act which would be illegal and also an
offence punishable in law. But then, there is no evidence
brought on record that the registered owner (insured) was
privy to such dishonest act on the part of the first
respondent. Fact remains that the transport authority
through its official confirmed before the tribunal in the
inquiry that the driving license for the period in question
was valid and effective.
MAC Appeal No. 105/2010 Page 3 of 4
4. Having regard to the law laid down by the Supreme
Court in National Insurance Co. Ltd. vs. Swaran Singh &
Ors.(2004) 3 SCC 297, the plea of the insurance company
cannot be accepted.”
7. For the foregoing reasons, the appeal is found devoid of
substance and is dismissed.
8. By order dated 23.02.2010, the insurance company had been
directed to deposit the entire awarded amount with upto date interest.
By subsequent order dated 07.09.2015, fifty per cent (50%) of the
awarded amount was released to the first respondent. The balance
shall now be released in terms of the impugned judgment.
9. The statutory amount shall be refunded to the appellant
insurance company.
10. The appeal stands disposed of in above terms.
R.K.GAUBA, J.
SEPTEMBER 11, 2017
v k
MAC Appeal No. 105/2010 Page 4 of 4