New India Assurance Co Ltd. vs Smt Gyanwati and Others

G. P. Mittal, J.—The Appellant/Insurance Company impugns a judgment dated 13.02.2009 passed by the Motor Accident Claims Tribunal whereby while awarding compensation of `5,35,936/- along with interest @ 9% per annum in favour of Respondents No. 1 to 6, the Appellant''s plea of exoneration or grant of recovery right was rejected. It is urged by the learned counsel for the Appellant that it is apparent from the certified copy of the report u/s 173 Cr.P.C. filed against the Respondent No. 7 Sugreev Pandey that apart from his prosecution u/s 279/304A IPC he was also prosecuted u/s 3 read with Section 181 of the Motor Vehicles Act. The driver and the owner were also issued a notice u/o 12 Rule 8 CPC to produce the driving licence and the permit. They, however, failed to produce the same. The Appellant/Insurance Company having done whatever was within its power was entitled to be exonerated. In any case recovery right ought to have been granted in favour of the Appellant/Insurance Company and against Respondents No. 7 and 8.

I have perused the copy of notice dated 23.07.2008 Annexure ''B'' and the postal receipt placed on record of the paper book. This notice does not show that it was addressed to Respondents No. 7 and 8. Moreover, the said notice was not produced nor proved during enquiry before the Claims Tribunal, the same therefore cannot be taken into account. The Appellant, therefore, cannot take the plea that it did whatever was in its power by requiring Respondents No. 7 and 8 to produce the permit of the offending vehicle and the driving licence of the driver before the Court.

It is true that Respondent No. 7 was prosecuted for driving a vehicle without a licence. This was merely an allegation made by the prosecution against Respondent No. 7, no evidence has been produced that he has been convicted for the offence of driving vehicle No. HR-38-G 3106 without a valid driving licence. Merely filing a report u/s 173 Cr.P.C. is not sufficient to conclude that the accused was driving the vehicle without a valid licence. I am supported in this view by a judgment of this Court in Oriental Insurance Company Limited v. Rakesh Kumar & Ors., MAC APP.329/2010 decided on 03.02.2012.

It is well settled that in order to defend on that ground as mentioned u/s 149(2)(a)(i) and (ii) of the Act the insurer must prove that there is conscious and willful breach of condition of policy by the insured Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, and Sohan Lal Passi Vs. P. Sesh Reddy and others, United India Insurance Company Ltd. Vs. Lehru and Others,

It is urged by the learned counsel for the Appellant that the driver and the owner remained exparte during the enquiry before the Claims Tribunal. They preferred to contest the proceedings even in this Court, therefore argues the learned counsel, an inference must be drawn that the owner (Respondent No. 8) did not possess the permit in respect of the vehicle No. HR-38-G 3106 and the driver (Respondent No. 7) did not possess a valid driving licence. I am afraid no inference can be drawn without requiring Respondents No. 7 and 8 to produce permit and the driving licence of the driver. These issues not having been raised before the Claims Tribunal it did not deal with the same. The Appellant/Insurance Company has failed to prove that there was some willful breach of the terms of the policy. The Appeal is devoid of any merit. The same is accordingly dismissed.