2013(5) ALL MR (JOURNAL) 22
(DELHI HIGH COURT)
G.P. MITTAL, J.
Oic Ltd. Vs. Shanti & Ors.
MAC.APP. No.343 of 2009
2nd July, 2012
Petitioner Counsel: Mr. Tarkeshwar Nath,Mr. P.K. Mishra,Mr. B.K. Pandey,Mr. Saurabh Kumar Tuteja
Respondent Counsel: Mr. Prag Chawla,Mr. Atar Singh Tokas
Motor Vehicles Act (1988), Ss.147, 166 - Civil P.C. (1908), O.12 R.8 - Breach of conditions of policy - Insurer contended that driver did not possess valid driving licence on date of accident - In support of its case, insurer referred to prosecution of driver under relevant provisions of IPC and M.V. Act - Also referred to failure of driver to produce driving licence inspite of notice under O.12 R.8 - Held, prosecution of driver may not be sufficient but failure to produce licence inspite of notice under O.12 R.8 leads to inference that driver did not possess valid licence - Breach of policy conditions, proved - Insurer entitled to recovery from owner and driver.
New India Assurance Company Ltd. & Ors. Vs. Sanjay Kumar & Ors., ILR 2007(II) Delhi 733 [Para 5]
JUDGMENT :- The Appellant Insurance Company impugns a judgment dated 12.05.2009 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby while awarding a compensation of Rs.3,95,000/- for the death of Bhagat Singh, a 16 year old school going boy, the Appellant's plea that the owner Chhotey Lal (the Third Respondent) committed breach of the terms of the policy as the driver Ram Saran (the Second Respondent) did not possess a valid and effective driving licence on the date of the accident, was rejected by the Claims Tribunal.
2. It is urged by the learned counsel for the Appellant that a report under Section 173 Cr.P.C. was filed against Respondent Ram Saran for an offence punishable under Sections 279/304-A IPC. Along with the said offence, the Second Respondent was also prosecuted for an offence under Section 3 read with Section 181 of the Motor Vehicles Act, 1988 (the Act) as he did not possess a valid driving licence on the date of the accident.
3. It is contended that the Appellant served a notice under Order XII Rule 8 CPC Ex.R3W-1/B (Postal Receipt Ex.R3W-1/C) upon the owner to produce the driving licence of the driver. The driver did not prefer to contest the proceedings before the Claims Tribunal and was ordered to be proceeded ex-parte. The Third Respondent (the owner of the vehicle) kept stoic silence on the notice Ex.R3W-1/B. The Appellant Insurance Company did whatever was in its power to prove that the driver did not possess a valid driving licence. Thus, it was established on record that the Third Respondent committed willful breach of the terms of the policy and thus, the Appellant Insurance Company was entitled to recover the compensation paid to the First Respondent (the Claimant).
4. The prosecution of the driver under Section 3/181 of the Act by itself may not be sufficient to conclude that he did not possess a valid driving licence at the time of the accident because sometimes the driving licence is not collected by the Investigating Officer (IO) or is not handed over by the driver to the IO. But failure to produce the driving licence in spite of service of notice under Order XII Rule 8 CPC would be sufficient to draw an inference that the driver (the Second Respondent) did not possess a valid driving licence and nothing further could have been done as the Appellant Insurance Company could not have known the Licensing Authority or the place from where the driving licence could have been obtained.
22. Thus, where the insurance company alleges that the term of the policy of not entrusting the vehicle to a person other than one possessing a valid driving licence has been violated, initial onus is on the insurance company to prove that the licence concerned was a fake licence or was not a valid driving licence. This onus is capable of being easily discharged by summoning the record of the Licensing Authority and in relation thereto proving whether at all the licence was issued by the authority concerned with reference to the licence produced by the driver. Once this is established, the onus shifts on to the assured i.e. the owner of the vehicle who must then step into the witness box and prove the circumstances under which he acted; circumstances being of proof that he acted bona fide and exercised due diligence and care. It would be enough for the owner to establish that he saw the driving licence of the driver when vehicle was entrusted to him and that the same appeared to be a genuine licence. It would be enough for the owner, to discharge the onus which has shifted on to his shoulders, to establish that he tested the driving skill of the driver and satisfied himself that the driver was fit to drive the vehicle. Law does not require the owner to personally go and verify the genuineness of the licence produced by the driver.
23. Where the assured chooses to run away from the battle i.e. fails to defend the allegation of having breached the terms of the insurance policy by opting not to defend the proceedings, a presumption could be drawn that he has done so because of the fact that he has no case to defend. It is trite that a party in possession of best evidence, if he withholds the same, an adverse inference can be drawn against him that had the evidence been produced, the same would have been against said person. As knowledge is personal to the person possessed of the knowledge, his absence at the trial would entitle the insurance company to a presumption against the owner.
24. That apart, what more can the insurance company do other than to serve a notice under Order 12 Rule 8 of the Code of Civil Procedure calling upon the owner as well as the driver to produce a valid driving licence. If during trial such a notice is served and proved to be served, non response by the owner and the driver would fortify the case of the insurance company."
6. In view of the foregoing discussion, I am of the view that the Appellant Insurance Company has successfully proved the breach of the conditions of the policy, as the driver (the Second Respondent) did not possess a valid driving licence at the time of the accident. It was, therefore, entitled to recover the compensation paid to the First Respondent from the Insured (the Third Respondent) and the principal tortfeasor i.e. the Second Respondent, who was driver of the offending vehicle.
7. I hold that the Appellant is entitled to recover the compensation paid from the Second and the Third Respondent in execution of this very order without having resort to independent proceedings in the Civil Court.