IN THE COURT OF MS. [ENTITY], PO: MOTOR ACCIDENT CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI Suit No.D325/14 Date of Institution: 29.08.2014 IN THE MATTER OF: [ENTITY] S/o Shri Rama Shankar Singh R/o S3/1255, Jahangirpuri Azadpur New Delhi. Petitioner Versus 1. [ENTITY] S/o Shri Vijay Bahadur R/o Hanuman Mandir BlockB, Karampura Delhi. 2 Bajaj Allianz General Insurance Company Ltd. 6th Floor, 93 Ashoka Bhawan Nehru Place New Delhi. Respondents
Final Arguments heard : 09.03.2015 Award reserved for : 07.04.2015 Date of Award : 07.04.2015 [ENTITY] Vs [ENTITY] & Ors. AWARD
1. Vide this judgmentcumaward, I proceed to decide the DAR which is treated as a petition filed u/[SECTION] and [SECTION] of [ACT], as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 03.02.2014, the petitioner was on his duty near TPT Company, Dhaula Kuan on night duty, there he saw a vehicle in accidental condition and he reached near the accidental vehicle and was looking for the injured if any, in the meantime a Mahindra Champion bearing No.DL1LJ1750 came from Naraina side and hit the petitioner very hard. It is averred that as a result of the hit, the petitioner became critically injured and was taken to JPN Apex Trauma Centre, AIIMS. It is stated that in respect of the accident FIR No.48/14 under [SECTION] [ACT] was registered at PS South Campus. Later on the petitioner was shifted to Sir Ganga Ram Hospital where he remained admitted till 08.02.2014. He was operated at Sir Ganga Ram Hospital on 5.2.2014 and unreamed intramedullary nailing right tibia was done under GA. It is averred that the petitioner was working with L&T Ltd. through KMS Project and Services LLP Ltd. and was earning about Rs.18,000/ per month. It is averred that the petitioner remained on leave till 16.7.2014 and later on he was released from his job due to the accident. It is averred that the petitioner spent Rs.1,50,000/ on his treatment, Rs.30,000/ on conveyance, Rs.30,000/ on special diet and [ENTITY] Vs [ENTITY] & Ors.
Rs.40,000/ on attendant. It is averred that the petitioner needs removal of implant in future for which he would have to spend Rs.25,000/.
3. Written submissions/ reasoned response was filed on behalf of the respondent No.2 stating the offending vehicle was insured vide policy No.[CASE NUMBER] valid from 14.12.2013 to midnight 13.12.2014. It is averred that the respondent No.1 himself was driving the vehicle in question i.e. commercial goods vehicle without valid and effective driving license as his driving license was for motorcycle and LMV (NT). It is stated that there was intentional breach of terms, conditions, exception and limitation of the insurance policy. It is averred that the contract of insurance is a contract of indemnity and if the insured wants to take the benefit of the contract of the insurance, then he shall have to prove that the alleged offending vehicle was not being driven in contravention of the insurance policy and that he was holding a valid and effective driving license at the time of the alleged accident. It is averred that for fastening liability on all the respondents, negligence is required to be proved. It is averred that the alleged accident took place solely due to the rash and negligent act on the part of the petitioner and as such the respondent No.2 was not liable to pay any compensation to the claimant.
4. From the pleadings of the parties, the following issues were framed vide order dated 18.09.2014:
[ENTITY] Vs [ENTITY] & Ors.
1. Whether the petitioner/ injured sustained injuries in the accident which occurred on 03.02.2014 at about 09:35 A.M at Ring Road way to AIIMS Hospital, in front of TPT HQ Army, New Delhi caused by rash and negligent driving of vehicle bearing No.DL1LJ1750 driven and owned by respondent no.1 and insured with respondent no.2 ? OPP
2. Whether the petitioner/ injured is entitled for compensation?
If so, to what amount and from whom?
3.Relief.
Vide order dated 22.12.2014 it was directed that no interest shall be payable to the petitioner on the award, if any from 18.9.2014 on which date issues were framed till the date of the award.
5. The petitioner Shri [ENTITY], appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/A. He stated that FIR was filed on his statement. Copy of Aadhar Card and Bank Passbook of the petitioner are Ex.PW1/1 and Ex.PW1/2, copy of salary account statement is Ex.PW1/3, medical records are Ex.PW1/4 (colly), future treatment estimate is Ex.PW1/5 and copy of medical bills is Ex.PW1/6 (colly).
6. Shri [ENTITY], Accounts Supervisor at Larsen & Toubro Pvt. Ltd. was examined as PW2 and authority letter is Ex.PW2/A which was issued [ENTITY] Vs [ENTITY] & Ors.
by the IR Manager of the company. He had brought the record of the injured i.e. copy of salary slip of Mr. [ENTITY] for the period 01.01.2014 to 31.07.2014 which is Ex.PW2/1 (colly) and copy of wages register of employees which is Ex.PW2/2 (colly). He stated that the injured was working as IR Assistant Token No.215 PF No.GJRAJ768390002082. He stated that the leave to the injured was sanctioned on the basis of medical fitness certificate issued by Sir Ganga Ram Hospital, New Delhi bearing serial No.7357 and 8899 and photocopy of the same is Mark A and B and the original of the same was sent to the head office of the company. PE was closed on 23.2.2015.
7. On behalf of the respondent No.2, Shri [ENTITY], Senior Executive (Legal) was produced in the witness box as R2W1 and he deposed that the notice under [SECTION] and [SECTION] [ACT] was sent to the insured Shri [ENTITY] for production of driving license valid and effective for driving commercial goods vehicle and the insurance policy. The same is Ex.R2W1/1. The postal receipts are Ex.R2W1/2 and the AD card showing service upon the insured is Ex.R2W1/3. The copy of seizure memo of the license is Ex.R2W1/4, copy of DL is Ex.R2W1/5, DL verification report is Ex.R2W1/6, RC verification report is Ex.R2W1/7 and the insurance policy is Ex.R2W1/8. He stated that their office also sent notice to the insured which is Ex.R2W1/9 and postal receipts are Ex.R2W1/10. He stated that till date, the insured had not supplied the DL for driving the commercial vehicle. He stated [ENTITY] Vs [ENTITY] & Ors.
that the insurance company was not liable as there was intentional breach of terms and conditions of the insurance policy and the driver/ insured was not holding a DL for driving the commercial goods vehicle. He was not cross examined. RE was closed on 23.2.2015.
8. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.2 and perused the record. The petitioner was also examined on 23.2.2015 in terms of the judgment of the Hon'ble High Court on 11.1.2013 in [PRECEDENT].
9. My findings on the specific issues are as under:
10. As the petition has been filed U/[SECTION] [ACT] it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in [PRECEDENT] as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on [ENTITY] Vs [ENTITY] & Ors.
the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in [PRECEDENT] (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under [SECTION], [ACT] against the driver;
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the [ACT] are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under [ACT], the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In [PRECEDENT], it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under [ENTITY] Vs [ENTITY] & Ors.
[SECTION] and [SECTION] of the [ACT].
11. The case of the petitioner is that on 03.02.2014, the petitioner was on his duty near TPT Company, Dhaula Kuan on night duty, there he saw a vehicle in accidental condition and he reached near the accidental vehicle and was looking for the injured if any, in the meantime a Mahindra Champion bearing No.DL1LJ1750 came from Naraina side and hit the petitioner very hard. It was averred that as a result of the hit, the petitioner became critically injured and was taken to JPN Apex Trauma Centre, AIIMS. It was stated that in respect of the accident FIR No.48/14 under [SECTION] [ACT] was registered at PS South Campus. The petitioner had also deposed to that effect.
12. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of MLC, copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of fitness certificate of the offending vehicle and its verification report and copies of photographs. As per the FIR No.48/14 under [SECTION] [ACT], PS South Campus the case was registered on the basis of complaint of [ENTITY] Vs [ENTITY] & Ors.
the petitioner wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge sheeted for the offence under [SECTION] [ACT].
13. The respondent No.1 had not filed the written statement nor appeared to crossexamine PW1. During crossexamination by the learned counsel for the insurance company PW1 denied the suggestion that he was standing on the wrong spot of the road or that the accident had taken place due to his negligence. Thus only suggestions were put to PW1 which he denied. The mechanical inspection report of the offending vehicle is on record which shows that the front steel guard was dented/ pressed, front bumper was dented and the left bazel was damaged. Further as per the FIR when the IO reached the spot of the accident he had found a Wagon R car in accidental condition and it is the case of the petitioner that on seeing a vehicle in accidental condition he had reached there to look for any injured. Further the offending vehicle was found at the spot of accident. Accordingly there is nothing to dispute the testimony of PW1. The respondent No.1 who is the driver and owner of the offending vehicle has not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under [SECTION] [ACT]. In [PRECEDENT] it was observed that registration of criminal case against the driver of the offending [ENTITY] Vs [ENTITY] & Ors.
vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the involvement of vehicle No.DL1LJ1750. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
14. It was stated that as a result of the hit by the offending vehicle, the petitioner became critically injured and was taken to JPN Apex Trauma Centre, AIIMS. Copy of the MLC of the petitioner is on record as per which the nature of injuries was opined to be grievous. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents. Issue No.2
15. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, [ENTITY] Vs [ENTITY] & Ors.
transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
16. The case of the petitioner is that as a result of the hit by the offending vehicle on 3.2.2014, the petitioner became critically injured and was taken to JPN Apex Trauma Centre, AIIMS. Later on the petitioner was shifted to Sir Ganga Ram Hospital where he remained admitted till 08.02.2014. He was operated at Sir Ganga Ram Hospital on 5.2.2014 and unreamed intramedullary nailing right tibia was done under GA. It was averred that the petitioner spent Rs.1,50,000/ on his treatment. It was averred that the petitioner needed removal of implant in future for which he would have to spend Rs.25,000/. The petitioner had also deposed to that effect. Medical records are Ex.PW1/4 (colly), future treatment estimate is Ex.PW1/5 and copy of medical bills is Ex.PW1/6 (colly). Copy of the MLC of the petitioner is on record as per which the nature of the injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of BB right lower leg. The documents also show that he was admitted in hospital from 3.2.2014 to 8.2.2014. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any [ENTITY] Vs [ENTITY] & Ors.
disability due to the accident.
17. During crossexamination by the learned counsel for the insurance company PW1 stated that he had received reimbursement of Rs.One Lac from his office towards medical expenses. He denied the suggestion that the future estimate document was forged and fabricated. He denied the suggestion that he had received reimbursement of the entire medical bills. Thus PW1 stated that he had received reimbursement of Rs.One Lac from his office towards medical expenses. During crossexamination by the learned counsel for the insurance company PW2 could not say how much amount had been reimbursed from the office of the employer. He stated that the petitioner was not covered under the [ACT]. Thus PW2 could not say how much amount had been reimbursed from the office of the employer. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he had spent an amount of Rs. 1,50,000/ on his treatment. The petitioner had bills for an amount of Rs. 1,390/. Looking to the nature of the injuries the petitioner is held entitled to the amount of the bills. The petitioner had stated that he needed removal of implant in future for which he would have to spend Rs.25,000/. Future treatment estimate is Ex.PW1/5. However the said bill has not been got proved through anyone and as such the petitioner cannot be held entitled to the amount of the said bill. However the petitioner would incur some expenses even subsequently. Accordingly an amount of Rs.2,000/ is awarded towards [ENTITY] Vs [ENTITY] & Ors.
medical treatment and expenses including the amount of the bills. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
18. It has been held in [PRECEDENT] as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In [PRECEDENT] Lord [ENTITY] stated as follows:
"To compensate in money for pain and for the physical consequences is invariably difficult, but no other process can be devised than that of making monetary assessment."
The case of the petitioner is that as a result of the hit by the offending vehicle on 3.2.2014, he became critically injured and was taken to JPN Apex Trauma Centre, AIIMS. Later on the petitioner was shifted to Sir Ganga Ram Hospital where he remained admitted till 08.02.2014. He was operated at Sir Ganga Ram Hospital on 5.2.2014 and unreamed intramedullary nailing right tibia was done under GA. Copy of the MLC of the petitioner is on record as per which the nature of the injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of BB right lower [ENTITY] Vs [ENTITY] & Ors.
leg. The documents also show that he was admitted in hospital from 3.2.2014 to 8.2.2014. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2014, the petitioner is awarded Rs.25,000/ (Rs.Twenty Five Thousand only) for pain and suffering.
19. The petitioner was about 28 years of age at the time of the accident. Copy of Aadhar card of the petitioner is Ex.PW1/1 as per which the date of birth of the petitioner was 25.6.1985. As such he would have been more than 28 years old on the date of the accident i.e. 3.2.2014. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life or towards disfiguration.
CONVEYANCE AND SPECIAL DIET
20. The petitioner in para 5 of his affidavit Ex.PW1/A had stated that he had spent Rs.30,000/ on conveyance. During crossexamination by the learned [ENTITY] Vs [ENTITY] & Ors.
counsel for the insurance company PW1 admitted that he had not placed on record any document to show the expenses of Rs.30,000/ on special diet, Rs. 30,000/ on conveyance and Rs.40,000/ on attendant. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to AIIMS and thereafter to Sir Ganga Ram Hospital and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
21. The petitioner in para 5 of his affidavit Ex.PW1/A had stated that he had spent Rs.30,000/ on special diet. During crossexamination by the learned counsel for the insurance company PW1 admitted that he had not placed on record any document to show the expenses of Rs.30,000/ on special diet, Rs. 30,000/ on conveyance and Rs.40,000/ on attendant. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs. 5,000/ (Rs.Five Thousand only) for special diet.
[ENTITY] Vs [ENTITY] & Ors.
22. The petitioner in para 5 of his affidavit Ex.PW1/A had stated that he had spent Rs.40,000/ on attendant. During crossexamination by the learned counsel for the insurance company PW1 admitted that he had not placed on record any document to show the expenses of Rs.30,000/ on special diet, Rs. 30,000/ on conveyance and Rs.40,000/ on attendant. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.9,000/ is awarded towards attendant charges. LOSS OF INCOME
23. It is the case of the petitioner that he was working with L&T Ltd. through KMS Project and Services LLP Ltd. and was earning about Rs.18,000/ per month. It was averred that the petitioner remained on leave till 16.7.2014 and later on he was released from his job due to the accident. The petitioner had also deposed to that effect. Bank Passbook of the petitioner is Ex.PW1/2 and copy of salary account statement is Ex.PW1/3. During crossexamination by the learned counsel for the insurance company PW1 stated that he had not placed on record any salary certificate to show how much he was earning. He stated that he could produce the salary certificate. Thus PW1 stated that he had not placed on record any salary certificate to show how much he was earning and that he could produce the salary certificate. [ENTITY] Vs [ENTITY] & Ors.
24. The petitioner in support of his case had examined Shri [ENTITY], Accounts Supervisor at Larsen & Toubro Pvt. Ltd. as PW2 who had brought the record of the injured i.e. copy of salary slip of Mr. [ENTITY] for the period 01.01.2014 to 31.07.2014 which is Ex.PW2/1 (colly) and copy of wages register of employees which is Ex.PW2/2 (colly). He stated that the injured was working as IR Assistant Token No.215 PF No.GJRAJ768390002082. He stated that the leave to the injured was sanctioned on the basis of medical fitness certificate issued by Sir Ganga Ram Hospital, New Delhi bearing serial No.7357 and 8899 and photocopy of the same is Mark A and B and the original of the same was sent to the head office of the company. During crossexamination by the learned counsel for the insurance company PW2 admitted that he had not filed any certificate as to the genuineness of the salary record of the injured/ petitioner volunteered however, the certificates were attested by [ENTITY], IR Manager. He denied the suggestion that the salary record of the petitioner was forged and fabricated document. Thus PW2 admitted that he had not filed any certificate as to the genuineness of the salary record of the petitioner but there is even no reason doubt the record produced by him. During examination by the Tribunal the petitioner stated that he was 29 years old. He stated that at the time of the accident he was working as IR Assistant and was earning Rs. 19,000/ p.m. He stated that he had been terminated by the company and at present he was not working. As per the salary slip for the month of January, 2014 (the accident had taken place on 3.2.2014) the basic wages of the [ENTITY] Vs [ENTITY] & Ors.
petitioner were Rs.9,261/ at the wage rate of Rs.343/. Further overtime wages of Rs.11,491/ were paid, however the same would not be included for computing the income of the petitioner.
25. The petitioner has not produced any document to show that on account of the injuries sustained in the accident he was unable to work or to show the period for which he was not able to work. However he has placed on record fitness certificates from Sir Ganga Ram Hospital, copies of which were also produced by PW2 as per which he was advised rest from 3.2.2014 to 10.4.2014 and then from 11.4.2014 to 15.7.2014. A perusal of the salary slips also shows that he was paid salary for only one day in February, 2014 and thereafter he was not paid wages for the months of March, April, May, June and even July, 2014. During examination by the Tribunal the petitioner had stated that he had been terminated by the company and at present he was not working but there is nothing to show that he stood terminated by the company though the documents produced by PW2 mention full and final for July, 2014 or that he was not working at present on account of the injuries sustained in the accident. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs.50,000/ consolidated on account of loss of income.
26. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he [ENTITY] Vs [ENTITY] & Ors.
acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.2,000/ Pain and suffering Rs.25,000/ Loss of Amenities of life Rs.10,000/ Conveyance Rs.5,000/ Special Diet Rs.5,000/ Attendant charges Rs.9,000/ Loss of Income Rs.50,000/ TOTAL Rs.1,06,000/
Thus the total compensation would be Rs.1,06,000/.
RELIEF
27. The petitioner is awarded a sum of Rs.1,06,000/ (Rs.One Lac Six Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till 18.9.2014 (vide order dated 22.12.2014 it was directed that no interest shall be payable to the petitioner on the award, if any from 18.9.2014 on which date issues were framed till the date of the award) and from today till [ENTITY] Vs [ENTITY] & Ors.
its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.2 is directed to deposit the award amount directly in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay. APPORTIONMENT OF LIABILITY:
28. The respondent No.1 is the driver cum owner of the offending vehicle and the respondent No.2 is the insurer of the offending vehicle. It is the case of the respondent No.2 that the respondent No.1 was not in possession of a valid license to drive the type of vehicle which he was driving at the time of the accident which amounted to fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.2 had produced R2W1 in the witness box who deposed that the notice under [SECTION] and [SECTION] [ACT] was sent to the insured Shri [ENTITY] for production of driving license valid and effective for driving commercial goods vehicle and the insurance policy. The same is Ex.R2W1/1. The postal receipts are Ex.R2W1/2 and the AD card showing service upon the insured is Ex.R2W1/3. The copy of seizure memo of the license is Ex.R2W1/4, copy of DL is Ex.R2W1/5, DL verification report is Ex.R2W1/6, RC verification report is Ex.R2W1/7 and the insurance policy is Ex.R2W1/8. He stated that their office also sent notice to [ENTITY] Vs [ENTITY] & Ors.
the insured which is Ex.R2W1/9 and postal receipts are Ex.R2W1/10. He stated that till date, the insured had not supplied the DL for driving the commercial vehicle. He stated that the insurance company was not liable as there was intentional breach of terms and conditions of the insurance policy and the driver/ insured was not holding a DL for driving the commercial goods vehicle. He was not crossexamined.
29. It is seen that copy of the DL of the respondent No.1 was placed on record by the IO with the DAR along with the verification report and the same shows that the DL of the respondent No.1 was valid for LMVNT and Motorcycle and not for a commercial vehicle or a goods vehicle. Further the respondent No.2 had issued notice to the respondent No.1 to produce the DL of the respondent No.1 but the respondent No.1 did not produce any other DL nor appeared to crossexamine R2W1. In [PRECEDENT] the Hon'ble High Court observed as under:
"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 [ENTITY] Vs [ENTITY] & Ors.
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 [SECTION] of the [ACT] calling upon the owner as well as the driver to produce a valid driving license. 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."
In the instant case the respondent No.2 had sent the notice under [SECTION] [ACT] to the driver cum owner and there is nothing more that the insurance company could have done. Further the report of the IO is there and the respondent No.1 has not rebutted the same.
30. It is settled law that the insurance company has to establish that there was a conscious breach of the terms and conditions of the policy. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. The issue was considered at length by the Hon'ble High Court of Delhi in [PRECEDENT]. [CASE NUMBER] decided on 3.8.2012 and it was observed:
"The issue of satisfying the third party liability even in case of breach of the terms of insurance policy is [ENTITY] Vs [ENTITY] & Ors.
settled by three Judge Bench report in [ENTITY] v. P. Sesh Reddy, (1996) 5 SCC 21. As per [SECTION] of the [ACT] (the Act), an insurer is entitled to defend the action on the grounds as mentioned under [SECTION] of the Act. Thus, the onus is on the insurer to prove that there is breach of the condition of the policy. It is well settled that the breach must be conscious and willful. Even if a conscious breach on the part of the insured is established, still the insurer has a statutory liability to pay the compensation to the third party and will simply have the right to recover the same from the insured/tortfeasor either in the same proceedings or by independent proceedings as the case may be, as ordered by the Claims Tribunal or the Court. The question of statutory liability to pay the compensation was discussed in detail by a two Judge Bench of the Supreme Court in [ENTITY] Insurance Company Limited v. Kokilaben Chandravadan, (1987) 2 SCC 654 where it was held that exclusion clause in the contract of Insurance must be read down being in conflict with the main statutory provision enacted for protection of victim of accidents. It was laid down that the victim would be entitled to recover the compensation from the insurer irrespective of the breach of the condition of policy. The three Judge Bench of the Supreme Court in [ENTITY] analyzed the corresponding provisions under the [ACT] and the [ACT] and approved the decision in [ENTITY]. In [PRECEDENT], the Supreme Court referred to the decision of the two Judge Bench in [ENTITY], the three Judge Bench decision in [ENTITY] and held that the insurer who has been made liable to pay [ENTITY] Vs [ENTITY] & Ors.
the compensation to third parties on account of issuance of certificate of insurance, shall be entitled to recover the same if there was any breach of the policy condition on account of the vehicle being driven without a valid driving licence.
20. This Court in [PRECEDENT] decided by a common judgment dated 29.02.2012, noticed some divergence of opinion in [PRECEDENT], [PRECEDENT]; [PRECEDENT] and [PRECEDENT] and held that in view of the three Judge Bench decision in [ENTITY] (supra) and [ENTITY], the liability of the Insurance Company visvis the third party is statutory. If the Insurance Company successfully proves the conscious breach of the terms of the policy, then it would be entitled to recovery rights against the owner or driver, as the case may be."
Thus if the insurance company proves conscious breach of the terms of the policy, it would be entitled to recovery rights. In the instant case the insurance company has succeeded in discharging the onus in this regard and it stands established that the respondent No.1 was not holding a valid license to drive a commercial vehicle/ light goods vehicle on the date of the accident and [ENTITY] Vs [ENTITY] & Ors.
thereafter the respondent No.1 has not appeared to rebut the same.
31. In view of the settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondent No.1 did not produce a valid license to drive a commercial vehicle/ light goods vehicle on the date of the accident the respondent No.2 shall have the right to recover the amount of compensation from the respondent No.1 who is the driver cum owner of the offending vehicle and the insured. Accordingly the respondent No.2 shall deposit the amount of compensation for which the respondent No.1 would be liable and after depositing the same shall have the right to recover the same from the respondent No.1. The respondent No.2 being the insurer is directed to deposit the award amount in the court by way of crossed cheque/ demand draft within 30 days of the passing of the award with interest as directed in para 27 of the judgment cum award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
32. [ENTITY] to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. [ENTITY] is directed to note the particulars of the award amount in the register today itself. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with [ENTITY] Vs [ENTITY] & Ors.
interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 13.7.2015.
An attested copy of the award be given to the parties (free of cost). File be consigned to record room.
Announced in open court on this 7th day of April, 2015 ([ENTITY]) PO: MACT2 New Delhi [ENTITY] Vs [ENTITY] & Ors.