MAC APP.279/2018

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$~17

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IN THE HIGH COURT OF DELHI AT NEW DELHI

%

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MAC.APP. 279/2018

THE NEW INDIA ASSURNACE CO LTD

..... Appellant

Through: Mr. Gaurav Nair, Adv.

versus

CHANAN SINGH (DECEASED) THR LRS

..... Respondent

Through

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

NAJMI WAZIRI, J (Oral)

1. This appeal impugns the award of compensation dated 20.01.2018

passed by the learned MACT in Case No. 450464/2016, on the ground that

it did not grant right of recovery to the appellant-insurer against the owner of

the offending-insured vehicle. It is the appellant’s case that by notice dated

17.11.2017 it had sought following information from the owner of the

vehicle under Order 12 Rule 8 CPC:

covers on the date of accident i.e. 29.04.2008...”

2. The said letter was never responded to nor were the requisite

documents supplied to the insurer. The owner and driver of the vehicle did

not appear before the learned MACT and they were proceeded ex parte.

KAMLESH KUMAR

18.10.2019 15:06

MAC APP.279/2018

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The appellant’s contention in this regard has been dealt with in the

impugned order as under:

petitioner (sic)”

3. It is the appellant’s contention that the defence taken by it was

legitimate as it would not be liable to pay compensation unless there was a

valid driving licence produced by the driver of the offending-insured vehicle

driving at the time of the motor vehicular accident, as well as the fact that

the vehicle should have been certified to be fit, to ply on public roads. The

non-production of either of the two documents would have to be inferred

adversely against the insured owner. He relies upon the dicta of this Court

MAC APP.279/2018

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in ICICI Lombard GIC Ltd. vs Subhash & Ors., dated 19.01.2016 passed

in MAC.APP. 105/2013, which held as under:

733...”

4. What emanates from the preceding discussion is that an insurer has

the right to seek requisite information to determine whether there was breach

of policy condition at the time of the motor-vehicular accident. If there was

no driving licence produced by the driver Gopal, who was allegedly driving

the vehicle when the said accident occurred, the appellant- insurer has every

right to presume that he did not possess any driving licence, as well as the

fact that the offendig vehicle did not possess the requisite permit or fitness

certificate to ply on a public road. The owner of the vehicle was given

ample opportunity to prove otherwise.

5. In the circumstances, the presumption would be that there was breach

of policy condition. Accordingly, the impugned order is modified to the

extent that the appellant- insurer shall have right of recovery of the amount

paid by it to the beneficiaries of the award, against the owner of the vehicle

i.e. Mr. Akhilesh Singh Kasana, Respondent No. 7.

MAC APP.279/2018

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6. The appeal is allowed and disposed off in the above terms. The

statutory amount along with interest accrued thereon be returned to the

appellant.

NAJMI WAZIRI, J

OCTOBER 10, 2019/kk