Reliance General Insurance Co Ltd v. Hitesh Negi & Ors

JUDGMENT G. P. MITTAL, J. (ORAL)

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

¶2For 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 DELHI Date ofdecision: 12"^ December,2012 + MAC. APP. 1081/2011 RELIANCEGENERALINSURANCECO. LTD Appellanl Through: Mr. Sameer Nandwani, Advocate. Versus ANKITMAHESHWARl& ORS. Respondents Thi-ough: Ms. Girija Samai, Advocate for Respondent No. 1. i MAC. APP. 1082/2011 RELIANCE GENERALINSURANCE CO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. 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. Respondents Through: None MAC.APP. Nos.lUSIflOIl, 1082/2011,1083/21111, 11184/2011,1085/2011,1086/2011,1094/2011,1095/2011, 1096/2011& 3/2012 Pubc I of 8 MAC. APP. 1084/2011 RELIANCE GENERAL INSURANCE CO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. Versus HITESH NEGI & ORS. Through: None Respondents MAC. APP. 1085/2011 RELIANCE GENERAL INSURANCE CO. LTD. Appellant Through: Mr. Sameer Nandwani, Advocate. Versus SHOUKET ALI & ORS. Through: None Respondents I MAC. APP. 1086/2011 RELIANCE GENERAL INSURANCE CO. LTD. Appellant Through: Mr. Sameer Nandwani, Advocate. Versus MASTER VIKRAM & ORS. Through: None Respondents I MAC. APP. 1094/2011 RELIANCE GENERAL INSURANCE CO. LTD Appellant Tln'ough: Mr. Sameer Nandwani, Advocate. Versus DEV MITRA TIWAIU 8c 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 & 3/2012 Psiec2of8 MAC. APP. 1095/2011 RELIANCEGENERALINSURANCECO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. Versus MASTER GAURAV PATWAL & ORS. Through: None Respondents + MAC. APP. 1096/2011 RELIANCE GENERALINSURANCE CO. LTD Appellant Through: , Mr. Sameer Nandwani, Advocate. Versus SAROJ & ORS. Respondents Through: None I MAC. APP. 3/2012 RELIANCE GENERAL INSURANCE CO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. Versus RAJ PAUL @ RAJJU & ORS. Through: None Respondents CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT G. P. MITTAL, J. (ORAL)

¶1These ten Appeals arise out of a common judgment dated 20.09.2011 MAC. APP. Nos.lOSI/ZOll, 1082/2011, 1083/2011, 1084/2011, 1085/2011, 1086/2011, 1094/2011, 1095/2011, 1096/2011 & 3/2012 I passed by the Motor Accident Claims Tribunal(the Claims Tribunal) Avherebya compensation as tabulated hereinunder was awarded in favour of the Respondent/Respondents(Claimant/Claimants)for having suffered injuries in a motor vehicle accident which occurred on 03.02.2010 by the Claims Tribunal:- s. Petition No. MAC.APP.No. Name of the Amount of No. Injured/Claimant Compensation

¶1403/2010 1081/2011 Ankit Maheshwari ?67,500/-

¶2342/2010 1082/2011 Ajay Pal Singh ? 1,06,100/-o3. 343/2010 1083/2011 Bijender Singh ?25,690/-

¶4345/2010 1084/2011 Hitesh Negi ? 15,000/-

¶5318/2010 1085/2011 Shouket Ali ?15,000/-

¶6346/2010 1086/2011 Master Vikram Singh Gosain ?15,000/-

¶773/2011 1094/2011 Dev Mitra Tiwari and Durgesh Tiwari ?3,90,000/-

¶8344/2010 1095/2011 Master Gaurav Patwal ? 15,000/-

¶9317/2010 1096/2011 Saroj ? 15,000/-

¶10242/2010 3/2012 Rajpaul @ Rajju ^3,75,000/-

¶2The only ground urged on behalf of the Appellant Insurance Company is that the Respondent Riyazuddin (owner) committed a breach of the terms and conditions of the policy by permitting the driver(Amit @ Nata) to drive RTV No.DL-lVA-1494 without an effective and valid driving licence and thus the Appellant Insurance Company was entitled to avoid the contract of insurance. It is urged that the Appellant should at least be granted recovery rights. MAC. APP. Nos.I08I/20n, 1082/2011, 1083/2011, 1084/2011, 1085/2011, 1086/2011, 1094/2011, 1095/2011, 1096/2011 & 3/2012 Pngc 4 of 8

¶3I have before me the Trial Court record. The learned counsel for the Appellant relies on the testimony of Rakesh Sonkar (R3W1) to emphasize that a notice dated 10.08.2011 (Ex.R3Wl/A) under Order 12 Rule 8 CPC issued on behalf of the Appellant was duly sei-vedupon the owner and the driver. The Insurance Company did whatever was in its power and discharged the initial onus placed on it to prove breach of the terms and conditions of the policy. The onus shifted on the owner to prove that the driver possessed a valid and effective driving licence.

¶4It is urged by the learned counsel for the Appellant that the Respondent Amit @ Nata (driver of the insured vehicle) absconded after the accident and as per the DAR (Detailed Accident Report), he did not possess any driving licence. This fact coupled with service of the notice was sufficient for the Claims Tribunal to hold that the owner committed breach of the terms and conditions of the policy. It is urged that the Claims Tribunal erred in not even granting recovery rights despite the evidence adduced by the Appellant.

¶5In the written statement filed by the Appellant, only a vague and general plea was taken that in case the driver did not possess a valid and effective driving licence, the Insurance Company shall not be liable to indemnify the insured. The owner was never informed by the Appellant to produce the driving licence except by a notice dated 10.08.2011. In pursuance of the said notice, the owner appeared in the witness box as R2W1. He testified that the driver(Amit @ Nata) possessed a valid driving licence to drive a RTV. He deposed that the driver was a professional and competent driver and he had seen his driving licence, copy of which was also placed on record. Thus, as soon as the owner was informed about the alleged breach of the terms and conditions of the policy, he came MAC. APP. Nos. 1081/2011, 1082/2011, 1083/2011, 1084/2011, 1085/2011, 1086/2011, 1094/2011, 1095/2011, 1096/2011 & 3/2012 Ps>ge5of8 b forward and produced the copy of the driving hcence.

¶6It is urged by the learned counsel for the Appellant that the driving licence ought to have been got proved by the owner by producing a witness from the concerned licensing authority.

¶7I would not agree with the learned counsel. The onus to prove breach of the terms of the policy is on the insurer. Once the owner stated that he took the driving test and was satisfied about the driving licence, that was enough. Moreover, in the instant case, the Appellant Insurance Company did not even try to verify the driving licence No.025390 issued by District Transport Officer, Bhind(M.P.). The hcence was valid from 12.05.2008 to

11.05.2011, which covered the period of accident. In the circumstances, the Appellant Insurance Company is not entitled to complainabout the breachof the terms and conditionsof the policy.

¶8During the course of arguments, a legal question was raised by the learned counsel for the Appellant Insurance Company. It is stated that carrying capacity of tlie insured vehicle RTV No.DL-lVA-1494 as per registration certificate (Ex.R3Wl/C) placed on record was 15. It is urged that more than 21 passengers were travelling in the insured vehicle at the time of the accident and 21 of them suffered injuries as the RTV capsizcd on account of rash and negligent driving. As many as 21 Claim Petitions were filed in respect of this accident. It is urged that the Appellant was liable to pay the compensation only in respect of 15 victims and the compensationof 15 victimswas to be distributedon pro rata basis by the Court amongst all the 21 victims and rest of the compensation shall be payable by the owner and the driver of the vehicle.

¶9I 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 Ps>5ie6or8

¶10National Insurance Co. Ltd. v. Anjana Shyam & Ors., (2007) 7 SCC 445. In the said case, the bus had carrying capacity of 42 passengers for which it paid the premium. It was overloaded and was carrying 90 passengers. The bus fell off the road into a nala leading to death of 26 persons including the driver and injuring other persons. The legal representatives of the deceased and the injured approached the Motor Accident Claims Tribunal claiming compensation under Section 166 of the Act. A contention was raised before the Claims Tribunal that it was a fundamental breach of the contract of Insurance and therefore, the Insurance Company could repudiate the policy and was not liable for the compensation that may be adjudged. The Claims Tribunal brushed aside the objection and passed the award. The Insurance Company filed 38 Appeals before the Himachal Pradesh High Court. The High Court held that overloading of a bus which had permit to ply on the route with only 42 passengersdidnot amountto violationof the routepermitor any other law for which the State Govt. could be held to be contributory negligence and that the Insurance Company was liable to pay the amounts as awarded by the Claims Tribunal. The Insurance Company approached the SupremeCourt where it was held that InsuranceCompanywould be liableto pay compensationin respectof 42 awardspassedfor the highest amount which would be distributed amongst the injured/legal representativesofthe deceasedequitably. In the instantcase, thecarrying capacity was 15 and the vehicle was overloaded with 21 passengers. My attention was drawn to an order dated 17.09.2011 passed by the Claims Tribunal whereby five Claims Petitions being (Suit Nos. 283/2011, 284/2011, 285/2011, 286/2011 and 341/2010) were dismissed for want of any evidenceand one Petition being (Suit No.316/2010)was MAC.APP. Nos.1081/2011,1082/2011,1083/2011,1084/2011, 1085/2011,1086/20U, 1094/2011,1095/2011,1096/2011& 3/2012 Pjige 7 of 8 i ij

11.

12.

¶13adjourned sine die. The learned counsel for the Appellant concedes that only fifteen Appeals have been filed. Since compensation has been awarded in fifteen cases which is payable by the Appellant; there is no question of payment of compensation on pro rata basis. The Appeals are accordingly dismissed. Statutory amount of ?25,000/-, if any, shall be reftmded to the Appellant Insurance Company in each of the cases. Pending Applications stand disposed of (G.P. MITTAL) JUDGE DECEMBER 12, 2012 pst MAC. APP. Nos.I081/20n, 1082/2011,1083/2011, 1084/2011,1085/2011, 1086/2011,1094/2011,1095/2011, 1096/2011 & 3/2012 Page 8 of8

$ + IN THE HIGH COURT OF DELHI AT NEW DELHI Date ofdecision: 12"' December,2012 MAC. APR 1084/2011 RELIANCE GENERAL INSURANCE CO. LTD Appellant Through: Mr. Sameer Nandwani, Advocate. Versus HITESH NEGI & ORS. Through: None Respondents CORAM: HON'BLE MR. JUSTICE G.P.MITTAL