Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
Reserved on: 23 November, 2011
th
Pronounced on: 25 November, 2011
+ MAC APP. 580/2009
M/S. NATIONAL INSURANCE CO. LTD...... Appellant
Through: Mr. D.K.Sharma, Advocate.
Versus
RANVIR SINGH & ORS. ..... Respondents
Through: Shyam Singh Sisodia, Advocate
for R-3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported
in the Digest?
J U D G M E N T
G. P. MITTAL, J.
1. The short question for determination in this Appeal is whether
the Appellant M/s. National Insurance Company Limited ought
to have been granted the right to recovery of the compensation
awarded in favour of Respondents No.1 and 2. The deceased
Omvir Singh died on account of the injuries sustained in a
motor accident which occurred with Canter Truck bearing
No.HR-38K-4731 on 14.02.2006. The truck was owned by
MAC APP 580/2009 Page 1 of 4
Respondent No.3 and was driven by Respondent No.4 at the
time of the accident.
2. During inquiry, the Tribunal found that the accident was caused
on account of rashness and negligence on the part of the
Respondent No.4. Relying on Sarla Verma & Ors. v. Delhi
Transport Corporation & Anr., 2009 (6) SCC 121 deducted
50% towards personal expenses the deceased being a bachelor
took the average income of the deceased as ` 5196/- and on
applying the multiplier of 13 as per the age of the parents;
`
calculated the dependency as 4,05,288/- after adding notional
`
conventional sum, the Tribunal made an award for 4,65,288/-.
3. The grievance of the Insurance Company is that it examined
R2W1 Mr. I.K. Raina to prove the Insurance Policy Ex.R2W1/1
containing a condition that any person driving the motor vehicle
must hold an effective driving licence at the time of the accident
and is not disqualified from holding or obtained such a licence.
4. I was taken through an order dated 04.07.2009 passed by the
Tribunal, MLO from the concerned Transport Authority was
summoned to prove that the licence Ex.PW-1/F seized by the
police during criminal proceedings could not have been issued
on 12.05.2002, being Sunday.
5. It was urged that the Insurance Company that it was amply
proved that there was breach of condition of the policy and the
Insurance Company could avoid the liability under Section 149
MAC APP 580/2009 Page 2 of 4
(2) (a) of the Motor Vehicles Act, 1988. It is no longer res
integra that the person who alleges breach must prove the same.
The Insurance Company wa thus required to establish the said
breach by cogent evidence. Moreover, a bare perusal of the
provision of Section 149 (2) of the Motor Vehicles Act leads to
only one conclusion that the usual rule is once the insured
proves that the accident is covered by the compulsory insurance
clause, it is for the insurer to prove that it comes within an
exception. In the event, the Insurance Company fails to prove
that there has been breach of condition of policy on the part of
the insured. The Insurance Company cannot be absolved by his
liability. (National Insurance Company Limited v. Swaran
Singh 2004 (3) SCC 297).
6. Apart from summoning the MLO in respect of the driving
licence alleged to have been seized by the police during
investigation of the criminal case, no steps were taken by the
Insurance Company to ask the driver or the owner of the vehicle
to produce the driving licence. Neither of them was summoned
to appear as a witness. Thus, the Insurance Company has failed
to discharge the onus that there was breach of the condition of
the Insurance Policy.
7. Thus, the Insurance Company was under obligation to
indemnify the insurer and could not avoid the liability. The
Appeal is without any merit; the same is accordingly dismissed.
No costs.
MAC APP 580/2009 Page 3 of 4
8. Pending applications also stands disposed of.
9. Copy of the order may be sent to the trial court for information.
(G.P. MITTAL)
JUDGE
NOVEMBER 25, 2011
vk
MAC APP 580/2009 Page 4 of 4
rd
Reserved on: 23 November, 2011
th
Pronounced on: 25 November, 2011
+ MAC APP. 580/2009
M/S. NATIONAL INSURANCE CO. LTD...... Appellant
Through: Mr. D.K.Sharma, Advocate.
Versus
RANVIR SINGH & ORS. ..... Respondents
Through: Shyam Singh Sisodia, Advocate
for R-3
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported
in the Digest?
J U D G M E N T
G. P. MITTAL, J.
1. The short question for determination in this Appeal is whether
the Appellant M/s. National Insurance Company Limited ought
to have been granted the right to recovery of the compensation
awarded in favour of Respondents No.1 and 2. The deceased
Omvir Singh died on account of the injuries sustained in a
motor accident which occurred with Canter Truck bearing
No.HR-38K-4731 on 14.02.2006. The truck was owned by
MAC APP 580/2009 Page 1 of 4
Respondent No.3 and was driven by Respondent No.4 at the
time of the accident.
2. During inquiry, the Tribunal found that the accident was caused
on account of rashness and negligence on the part of the
Respondent No.4. Relying on Sarla Verma & Ors. v. Delhi
Transport Corporation & Anr., 2009 (6) SCC 121 deducted
50% towards personal expenses the deceased being a bachelor
took the average income of the deceased as ` 5196/- and on
applying the multiplier of 13 as per the age of the parents;
`
calculated the dependency as 4,05,288/- after adding notional
`
conventional sum, the Tribunal made an award for 4,65,288/-.
3. The grievance of the Insurance Company is that it examined
R2W1 Mr. I.K. Raina to prove the Insurance Policy Ex.R2W1/1
containing a condition that any person driving the motor vehicle
must hold an effective driving licence at the time of the accident
and is not disqualified from holding or obtained such a licence.
4. I was taken through an order dated 04.07.2009 passed by the
Tribunal, MLO from the concerned Transport Authority was
summoned to prove that the licence Ex.PW-1/F seized by the
police during criminal proceedings could not have been issued
on 12.05.2002, being Sunday.
5. It was urged that the Insurance Company that it was amply
proved that there was breach of condition of the policy and the
Insurance Company could avoid the liability under Section 149
MAC APP 580/2009 Page 2 of 4
(2) (a) of the Motor Vehicles Act, 1988. It is no longer res
integra that the person who alleges breach must prove the same.
The Insurance Company wa thus required to establish the said
breach by cogent evidence. Moreover, a bare perusal of the
provision of Section 149 (2) of the Motor Vehicles Act leads to
only one conclusion that the usual rule is once the insured
proves that the accident is covered by the compulsory insurance
clause, it is for the insurer to prove that it comes within an
exception. In the event, the Insurance Company fails to prove
that there has been breach of condition of policy on the part of
the insured. The Insurance Company cannot be absolved by his
liability. (National Insurance Company Limited v. Swaran
Singh 2004 (3) SCC 297).
6. Apart from summoning the MLO in respect of the driving
licence alleged to have been seized by the police during
investigation of the criminal case, no steps were taken by the
Insurance Company to ask the driver or the owner of the vehicle
to produce the driving licence. Neither of them was summoned
to appear as a witness. Thus, the Insurance Company has failed
to discharge the onus that there was breach of the condition of
the Insurance Policy.
7. Thus, the Insurance Company was under obligation to
indemnify the insurer and could not avoid the liability. The
Appeal is without any merit; the same is accordingly dismissed.
No costs.
MAC APP 580/2009 Page 3 of 4
8. Pending applications also stands disposed of.
9. Copy of the order may be sent to the trial court for information.
(G.P. MITTAL)
JUDGE
NOVEMBER 25, 2011
vk
MAC APP 580/2009 Page 4 of 4