MAC. APP. 9/2010 Page 1 of 6 UNREPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC. APP. 9/2010 ORIENTAL INSURANCE CO. LTD. ..... Appellant Through: Mr. A.K. Soni, Advocate versus MOHD. KASHIF & ORS. ..... Respondents Through: None % Date of Decision : February 08, 2011 CORAM: HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? J U D G M E N T (ORAL) : REVA KHETRAPAL, J. By way of this appeal, the appellant – Insurance Company seeks to assail the judgment and award dated 05.10.2009 passed by the learned Motor Accident Claims Tribunal, New Delhi on the sole MAC. APP. 9/2010 Page 2 of 6 ground that the Tribunal erred in not giving recovery rights to the appellant against the respondent No.2 – insured for the awarded amount. 2. The facts relevant for the disposal of the present appeal are that on 25.11.2002 a claim petition was filed by the respondent No.1, Mohd. Kashif claiming compensation under the Motor Vehicles Act, 1988 for the injury sustained by him in a road accident, caused by a truck bearing No.DL-1G-3875 owned by the respondent No.2 and driven by the respondent No.3 herein. The respondents No.2 and 3 did not choose to contest the petition and were proceeded ex parte by the Claims Tribunal in default of appearance during the proceedings. The appellant – Insurance Company while admitting the factum of insurance denied its liability to pay compensation to the victim, viz., the respondent No.1 on the ground that the respondent No.2 (insured) had breached the policy conditions, inasmuch as the offending truck was being driven by the respondent No.3 who was holding a fake licence. MAC. APP. 9/2010 Page 3 of 6 3. Before the Motor Accident Claims Tribunal, the appellant – Insurance Company examined Shri Rohtash, Clerk from the Transport Authority, Sonepat, as R1W1, from whom the appellant summoned the record relating to licence No.52516 purportedly issued by the Regional Transport Authority, Sonepat to the respondent No.3. R1W1, however, deposed that the driving licence No.52516, the record of which had been summoned, was not issued from the office of the RTO Sonepat. He further deposed that licences with such a large number of digits (five in this case) were not issued from the RTO Sonepat and went on to state that the licence in question did not bear even the authorized seal of the RTO Sonepat and was a fake one. Needless to state, this witness was not cross-examined at all. 4. Apart from examining R1W1, the appellant – Insurance Company examined R1W2 Shri Vikram Singh, the authorized officer of the Oriental Insurance Company, who proved on record the insurance policy No.215402/2002/64, which, he stated, was valid from 16.08.2001 to 15.08.2002 as Ex.R1W2/1. He further deposed that as per the verification report of one M.S. Bhist dated 03.01.2005, MAC. APP. 9/2010 Page 4 of 6 the licence of the respondent No.3 was found to be a fake one. The original report along with the fee receipt of the Transport Authority were proved on record by this witness as Ex.R1W2/2 and Ex.R1W2/3. 5. The sole submission of Mr. A.K. Soni, the learned counsel for the appellant – Insurance Company is that in view of the unrebutted evidence on record of R1W1 and R1W2 that the driving licence was a fake one and had resulted in the breach of the insurance policy conditions, the respondent No.2 – insured ought to have been made liable to pay the award amount and in the alternative, the right of recovery of the award amount should have been given to the appellant – Insurance Company by the learned Tribunal. The learned counsel also pointed out that the learned Tribunal erred in rejecting the evidence of R1W1 and R1W2 on the sole ground that there was no report from the office of the Regional Transport Authority to certify this fact and, therefore, the Insurance Company had failed to discharge the burden of showing that the licence held by the respondent No.3 – driver was a fake one. MAC. APP. 9/2010 Page 5 of 6 6. At this juncture, it deserves to be mentioned that though the insured (the respondent No.2 herein) was duly served with the notice to show cause in the appeal, he did not choose to appear and contest the proceedings. As noted above, he remained ex parte before the learned Tribunal as well. Likewise, the respondent No.3 – driver was also proceeded ex parte by the Claims Tribunal. Thus, the unrebutted evidence on record is that the driving licence in the instant case was a fake one. A witness from the Regional Transport Authority was duly summoned and examined by the appellant – Insurance Company to prove this fact, which also stood proved through the report of the Investigator of the Insurance Company, as testified by the authorized officer of the Insurance Company, namely, R1W2. 7. There is thus no manner of doubt that the insured had breached the policy conditions by handing over the offending truck to be driven by a person with a fake licence. It was for the respondent No.2 – Insured to have stepped into the witness box to depose that he was not aware of the fact that the driving licence held by the respondent No.3 was a fake one. The respondent No.2 not having chosen to MAC. APP. 9/2010 Page 6 of 6 examine himself in order to bring on record the fact that he was laboring under a bona fide impression that he had engaged a duly licenced driver to drive the offending truck, it must be presumed that he was aware of the fact that the driving licence held by the respondent No.3 was a fake one. 8. Consequently, the appeal succeeds and the appellant – Insurance Company is held entitled to recover the award amount from the respondent No.2, which, it is stated, has already been paid by the appellant to the claimants. 9. MAC. APP. No.9/2010 stands disposed of accordingly. REVA KHETRAPAL (JUDGE) February 08, 2011 km