Reliance General Insurance Co Ltd. Vs. Nawab Jan and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/1135423
CourtDelhi High Court
Decided OnMar-27-2014
JudgeSURESH KAIT
AppellantReliance General Insurance Co Ltd.
RespondentNawab Jan and ors
Excerpt:
$~3 * in the high court of delhi at new delhi judgment delivered on:27. h march, 2014 % + mac.app. 1008/2011 & cm. no.20687/2011 reliance general insurance co ltd. ..... appellant represented by: mr. sameer nandwani, adv. versus nawab jan & ors ..... respondents represented by: nemo. coram: hon'ble mr. justice suresh kait suresh kait, j.(oral) mac.app. 1008/2011 1. the present appeal has been preferred against the impugned award dated 20.09.2011 whereby ld. tribunal has awarded compensation for an amount of rs.10,52,208/- with interest @ 7.5% per annum from the date of filing of the claim petition till realization of the amount.2. ld. counsel appearing on behalf of the appellant submits that ld. tribunal has wrongly held that the onus to prove that there was no permit on the fateful day was not duly discharged as no witness from the rto was summoned by the insurance company. if the notice under order 12 rule 8 cpc has been duly served upon the owner of the offending vehicle, in such eventuality, the onus shifts on the addressee to disprove the contents of the same.3. on perusal of impugned award and after going through the evidence on record, the ld. tribunal has recorded that the respondent no.6, i.e., the driver of the offending vehicle is the principal tort feasor and respondent no.7 and the appellant, being the owner and the insurer of the offending vehicle respectively, are vicariously liable for the acts of respondent no.6.4. r3w1, sh. satyan kapur, has proved that a notice under order 12 rule 8 cpc was served upon respondent no.7, by which he was asked to produce the permit of the offending vehicle in the court and copy of the same was to be sent to the office of the appellant. however, he failed to do so.5. respondent nos. 6 & 7, i.e., the driver and owner of the offending vehicle, did not file the written statement before the ld. tribunal and accordingly proceeded ex-parte. in appeal also they were served by way of publication, despite none appeared on their behalf.6. the factum of the notice has been proved by the appellant. therefore, there is nothing on record whether the offending vehicle was having valid permit at the time of accident or not. in such, eventuality, adverse inference had to be drawn against the owner of the offending vehicle. however, ld. tribunal failed to do.7. in view of the aforementioned facts, i am of the considered opinion that ld. tribunal has wrongly held that the breach of terms of the policy has not been established. therefore, appellant is at liberty to recover the amount from respondent no.7, i.e., the owner of the offending vehicle.8. in view of above, appeal is allowed.9. statutory amount be released in favour of the appellant and the balance compensation amount, if any, be released in favour of the respondents / claimants. cm. no.20687/2011 with the disposal of the instant appeal itself, instant application has become infructuous and disposed of as such. suresh kait, j.march27 2014 jg/sb
Judgment:

$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:

27. h March, 2014 % + MAC.APP. 1008/2011 & CM. No.20687/2011 RELIANCE GENERAL INSURANCE CO LTD. ..... Appellant Represented by: Mr. Sameer Nandwani, Adv. Versus NAWAB JAN & ORS ..... Respondents Represented by: NEMO. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J.

(Oral) MAC.APP. 1008/2011 1. The present appeal has been preferred against the impugned award dated 20.09.2011 whereby Ld. Tribunal has awarded compensation for an amount of Rs.10,52,208/- with interest @ 7.5% per annum from the date of filing of the Claim Petition till realization of the amount.

2. Ld. Counsel appearing on behalf of the appellant submits that Ld. Tribunal has wrongly held that the onus to prove that there was no permit on the fateful day was not duly discharged as no witness from the RTO was summoned by the Insurance Company. If the notice under Order 12 Rule 8 CPC has been duly served upon the owner of the offending vehicle, in such eventuality, the onus shifts on the addressee to disprove the contents of the same.

3. On perusal of impugned award and after going through the evidence on record, the Ld. Tribunal has recorded that the respondent No.6, i.e., the driver of the offending vehicle is the principal tort feasor and respondent No.7 and the appellant, being the owner and the insurer of the offending vehicle respectively, are vicariously liable for the acts of respondent No.6.

4. R3W1, Sh. Satyan Kapur, has proved that a notice under Order 12 Rule 8 CPC was served upon respondent No.7, by which he was asked to produce the permit of the offending vehicle in the court and copy of the same was to be sent to the Office of the appellant. However, he failed to do so.

5. Respondent nos. 6 & 7, i.e., the driver and owner of the offending vehicle, did not file the written statement before the Ld. Tribunal and accordingly proceeded ex-parte. In appeal also they were served by way of publication, despite none appeared on their behalf.

6. The factum of the notice has been proved by the appellant. Therefore, there is nothing on record whether the offending vehicle was having valid permit at the time of accident or not. In such, eventuality, adverse inference had to be drawn against the owner of the offending vehicle. However, Ld. Tribunal failed to do.

7. In view of the aforementioned facts, I am of the considered opinion that Ld. Tribunal has wrongly held that the breach of terms of the policy has not been established. Therefore, appellant is at liberty to recover the amount from respondent No.7, i.e., the owner of the offending vehicle.

8. In view of above, appeal is allowed.

9. Statutory amount be released in favour of the appellant and the balance compensation amount, if any, be released in favour of the respondents / claimants. CM. No.20687/2011 With the disposal of the instant appeal itself, instant application has become infructuous and disposed of as such. SURESH KAIT, J.

MARCH27 2014 Jg/sb