MAC.APP./1084/2011 of RELIANCE GENERAL INSURANCE CO LTD Vs HITESH NEGI & ORS

$IN THE HIGHCOURTOF DELHIAT NEW DELHI

Date ofdecision: 12"' December,2012

+MAC. APR 1084/2011

RELIANCE GENERAL INSURANCE CO. LTDAppellantThrough:Mr. Sameer Nandwani, Advocate.

Versus

HITESH NEGI & ORS.RespondentsThrough:NoneThrough:None

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

JUDGMENT

G. P. MITTAL, J. (ORAL)

1.The present Appeal is disposed of in terms of the judgment passed todayin MAC.APP. 1081/2011titled'RELIANCE GENERAL INSURANCE CO.LTD. V. ANKITMAHESHWARI& ORS 'in MAC.APP. 1081/2011titled'RELIANCE GENERAL INSURANCE CO.LTD. V. ANKITMAHESHWARI& ORS '

2.For detailed order, please see the above mentioned judgment.

DECEMBER 12, 2012

pst

(G.P. MITTAL)JUDGE

$ 5, 6, 7, 8, 9, 10, 11, 18, 19 & 20

*IN THE HIGH COURT OF DELHI AT NEW DELHIDate ofdecision: 12"^ December, ofdecision: 12"^ December,decision: 12"^ December, 12"^ December, December,2012+MAC. APP. 1081/2011

Date ofdecision: 12"^ December, ofdecision: 12"^ December,decision: 12"^ December, 12"^ December, December,2012

RELIANCEGENERALINSURANCECO. LTDAppellanlThrough:Mr. Sameer Nandwani, Advocate.

Versus

ANKITMAHESHWARl& ORS.RespondentsThi-ough:Ms.GirijaSamai,AdvocateforRespondent No. 1.

iMAC. APP. 1082/2011

RELIANCE GENERALINSURANCE CO. LTDThrough:Mr. Sameer Nandwani, Advocate.

Appellant

Versus

AJAY PAL SINGH & ORS.Through:None

Respondents

+MAC. APP. 1083/2011

RELIANCE GENERAL INSURANCE CO. LTD

Appellant

Through:Mr. Sameer Nandwani, Advocate.

Versus

BIJENDER SINGH & ORS.

RespondentsThrough:None

MAC.APP. Nos.lUSIflOIl, 1082/2011,1083/21111, 11184/2011,1085/2011,1086/2011,1094/2011,1095/2011, 1096/2011& 3/2012Pubc I of 8

MAC. APP. 1084/2011

RELIANCE GENERAL INSURANCE CO. LTDThrough:Mr. Sameer Nandwani, Advocate.

Appellant

Versus

HITESH NEGI & ORS.

Through:None

Respondents

RELIANCE GENERAL INSURANCE CO. LTD.Through:Mr. Sameer Nandwani, Advocate.

Appellant

Versus

SHOUKET ALI & ORS.Respondents

Through:None

IMAC. APP. 1086/2011

RELIANCE GENERAL INSURANCE CO. LTD.

Appellant

Through:Mr. Sameer Nandwani, Advocate.

Versus

MASTER VIKRAM & ORS.Through:None

Respondents

IMAC. APP. 1094/2011

RELIANCE GENERAL INSURANCE CO. LTDTln'ough:Mr. Sameer Nandwani, Advocate.

Appellant

Versus

DEV MITRA TIWAIU8c ORS.Through:None

Respondents

MAC. APP. Nos.1081/2011,1082/2011,1083/2011,1084/2011,1085/2011, 1086/2011, 1094/2011,1095/2011,1096/2011& 3/2012Psiec2of8

MAC. APP. 1095/2011

RELIANCEGENERALINSURANCECO. LTDAppellantThrough:Mr. Sameer Nandwani, Advocate.VersusMASTER GAURAV PATWAL & ORS.RespondentsThrough:None+MAC. APP. 1096/2011

RELIANCE GENERALINSURANCE CO. LTDAppellantThrough:, Mr. Sameer Nandwani, Advocate.VersusSAROJ & ORS.RespondentsThrough:NoneIMAC. APP. 3/2012RELIANCE GENERAL INSURANCE CO. LTDAppellantThrough:Mr. Sameer Nandwani, Advocate.VersusRAJ PAUL @ RAJJU & ORS.RespondentsThrough:None

CORAM:HON'BLE MR. JUSTICE G.P.MITTAL

JUDGMENT

G. P. MITTAL, J. (ORAL)

1.These ten Appeals arise out of common judgment dated 20.09.2011

passed by the Motor Accident Claims Tribunal(the Claims Tribunal)Avherebya compensation as tabulated hereinunder was awarded in favourof the Respondent/Respondents(Claimant/Claimants)for having sufferedinjuries in motor vehicle accident which occurred on 03.02.2010 by theClaims Tribunal:-

2.The only ground urged on behalf of the Appellant Insurance Company isthat the Respondent Riyazuddin (owner) committed breach of the termsand conditions of the policy by permitting the driver(Amit @ Nata) todrive RTV No.DL-lVA-1494without an effectiveand valid drivinglicence and thus the Appellant Insurance Company was entitled to avoidthe contract of insurance. It is urged that the Appellant should at least begranted recovery rights.that the Respondent Riyazuddin (owner) committed breach of the termsand conditions of the policy by permitting the driver(Amit @ Nata) todrive RTV No.DL-lVA-1494without an effectiveand valid drivinglicence and thus the Appellant Insurance Company was entitled to avoidthe contract of insurance. It is urged that the Appellant should at least begranted recovery rights.

3.I have beforeme the TrialCourt record.The learnedcounselfor theAppellant relies on the testimony of Rakesh Sonkar (R3W1) to emphasizethat notice dated 10.08.2011 (Ex.R3Wl/A)under Order 12 Rule 8 CPCissued on behalf of the Appellant was duly sei-vedupon the owner and thedriver.The Insurance Company did whatever was in its power anddischarged the initial onus placed on it to prove breach of the terms andconditions of the policy. The onus shifted on the owner to prove that thedriver possessed valid and effective driving licence.Appellant relies on the testimony of Rakesh Sonkar (R3W1) to emphasizethat notice dated 10.08.2011 (Ex.R3Wl/A)under Order 12 Rule 8 CPCissued on behalf of the Appellant was duly sei-vedupon the owner and thedriver.The Insurance Company did whatever was in its power anddischarged the initial onus placed on it to prove breach of the terms andconditions of the policy. The onus shifted on the owner to prove that thedriver possessed valid and effective driving licence.

4.It is urged by the learned counsel for the Appellant that the RespondentAmit @ Nata (driver of the insured vehicle) absconded after the accidentand as per the DAR (Detailed Accident Report), he did not possess anydriving licence.This fact coupled with service of the notice wassufficientfor the ClaimsTribunalto hold that the ownercommittedbreach of the terms and conditions of the policy.It is urged that theClaims Tribunal erred in not even granting recovery rights despite theevidence adduced by the Appellant.Amit @ Nata (driver of the insured vehicle) absconded after the accidentand as per the DAR (Detailed Accident Report), he did not possess anydriving licence.This fact coupled with service of the notice wassufficientfor the ClaimsTribunalto hold that the ownercommittedbreach of the terms and conditions of the policy.It is urged that theClaims Tribunal erred in not even granting recovery rights despite theevidence adduced by the Appellant.5.In the written statement filed by the Appellant, only vague and generalplea was taken that in case the driver did not possess valid and effectivedriving licence, the Insurance Company shall not be liable to indemnifythe insured. The owner was never informed by the Appellant to producethe driving licence except by notice dated 10.08.2011. In pursuance ofthe said notice, the owner appeared in the witness box as R2W1.Hetestified that the driver(Amit @ Nata) possessed valid driving licence todrive RTV.He deposed that the driver was professional andcompetent driver and he had seen his driving licence, copy of which wasalso placed on record. Thus, as soon as the owner was informed aboutthe alleged breach of the terms and conditions of the policy, he cameplea was taken that in case the driver did not possess valid and effectivedriving licence, the Insurance Company shall not be liable to indemnifythe insured. The owner was never informed by the Appellant to producethe driving licence except by notice dated 10.08.2011. In pursuance ofthe said notice, the owner appeared in the witness box as R2W1.Hetestified that the driver(Amit @ Nata) possessed valid driving licence todrive RTV.He deposed that the driver was professional andcompetent driver and he had seen his driving licence, copy of which wasalso placed on record. Thus, as soon as the owner was informed aboutthe alleged breach of the terms and conditions of the policy, he came

forward and produced the copy of the driving hcence.

It is urged by the learned counsel for the Appellant that the drivinglicence ought to have been got proved by the owner by producing awitness from the concerned licensing authority.

I would not agree with the learned counsel. The onus to prove breach ofthe terms of the policy is on the insurer. Once the owner stated that hetook the driving test and was satisfied about the driving licence, that wasenough. Moreover, in the instant case, the Appellant Insurance Companydid not even try to verify the driving licence No.025390 issued by DistrictTransport Officer, Bhind(M.P.). The hcence was valid from 12.05.2008to11.05.2011, which covered the periodof accident.In thecircumstances, the Appellant Insurance Company is not entitled tocomplainabout the breachof the terms and conditionsof the policy.During the course of arguments, legal question was raised by thelearned counsel for the Appellant Insurance Company. It is stated thatcarrying capacity of tlie insured vehicle RTV No.DL-lVA-1494 as perregistration certificate (Ex.R3Wl/C) placed on record was 15. It is urgedthat more than 21 passengers were travelling in the insured vehicle at thetime of the accident and 21 of them suffered injuries as the RTV capsizcdon account of rash and negligent driving. As many as 21 Claim Petitionswere filed in respect of this accident. It is urged that the Appellant wasliable to pay the compensation only in respect of 15 victims and thecompensationof 15 victimswas to be distributedon pro rata basis by theCourt amongst all the 21 victims and rest of the compensation shall bepayable by the owner and the driver of the vehicle.

I tend to agree with the learned counsel for the Appellant Insurance

Company. This questionwas directlydealt with by the SupremeCourt in

MAC. APP. Nos.IU81/20n,1082/2011,1083/2011,108^/2011, 1085/2011, 1086/2011, 1094/2011, 1095/2011, 1096/2011 & 3/2012

National Insurance Co. Ltd. v. Anjana Shyam & Ors., (2007) 7 SCC 445.In the said case, the bus had carrying capacity of 42 passengers for whichit paid the premium. It was overloaded and was carrying 90 passengers.The bus fell off the road into nala leading to death of 26 personsincludingthedriverandinjuring63otherpersons.Thelegalrepresentatives of the deceased and the injured approached the MotorAccident Claims Tribunal claiming compensation under Section 166 ofthe Act. contentionwas raised before the Claims Tribunal that it was afundamentalbreachof thecontractof Insuranceandtherefore,theInsurance Company could repudiate the policy and was not liable for thecompensation that may be adjudged. The Claims Tribunal brushed asidethe objection and passed the award. The Insurance Company filed 38Appeals before the Himachal Pradesh High Court. The High Court heldthat overloading of bus which had permit to ply on the route with only42 passengersdidnot amountto violationof the routepermitor any otherlaw for which the State Govt. could be held to be contributory negligenceand that the Insurance Company was liable to pay the amounts asawarded by the Claims Tribunal. The Insurance Company approachedthe SupremeCourt where it was held that InsuranceCompanywould beliableto pay compensationin respectof 42 awardspassedfor the highestamountwhichwouldbedistributedamongsttheinjured/legalrepresentativesofthe deceasedequitably. In the instantcase, thecarryingcapacity was 15 and the vehicle was overloaded with 21 passengers.10.My attention was drawn to an order dated 17.09.2011 passed by theClaims Tribunal whereby five Claims Petitionsbeing (Suit Nos.283/2011, 284/2011, 285/2011, 286/2011 and 341/2010) were dismissedfor want of any evidenceand one Petition being (Suit No.316/2010)was

iji

MAC. APP. Nos.I081/20n,1082/2011,1083/2011, 1084/2011,1085/2011, 1086/2011,1094/2011,1095/2011,1096/2011 & 3/2012Page 8 of8