Sushil Kumar v. The New India Assurance Co Ltd

1. The Award is being impugned on the ground that the appellant was never served a notice under Order XII Rule 8 CPC; hence, he was denied the opportunity to lead evidence apropos the driving license of the driver engaged by him and who was driving the vehicle at the time ofthe accident. The learned counsel for the appellant states that there is a presumption that the driving license is valid and genuine because all that the owner of the vehicle has to do is to see the driving license and it is not incumbent on him to establish its authenticity. The Trial Court determined the liability as under:- "24. The insurance company has examined Sh. Satyawan, Assistant from RTA Faridabad as R3W[1], Sh. Sushil Kumar Assistantfrom RTA Jind, Haryana as R3W[2] and Sh. Sandeep Mehra, Senior Assistant from New India Assurance Company as R3W[3]. R3W[3] stated MAC.APP. 506/2016 Page 1 of[3] 2017:DHC:9080 that despite having served the Notice U/o 12 Rule 8 CPC EX.R3W3/2 and Ex. R3W3/3 upon driver and owner, the driving licence was not produced by them. However, R3W[1] has brought the insurance policy schedule as Ex.R3W3/l. He deposed that the driver / respondent no.I was not holding valid driving licence.

25. The record produced by R[3] W[1] clearly shows that the driving licence No. 327l/Faridabad/02 relied upon by the driver was infact not issued from Faridabad Licencing Authority and it was a fake driving licence. The DL Verification Report is also produced by R3W[2] Sh. Sushil Kumar which is Ex. R3W2/A. It, however, does not show the basis of renewal of the DL number 1756/JD/06 purportedly renewed upto 26.07.09. The notices Ex.R3W3/2 and r Ex.R3W3/3 were sent by registered post and were correctly addressed upon respondents. Therefore, there is presumption ofservice ofnotice. The respondents no.I and 2 have failed to produce the driving licence, even during proceedings before Tribunal. An inference can be drawn that there was no valid driving licence with the driver at the time ofaccident. I am placing reliance upon the judgment in Malta Prakasa Rao Vs. Malta Janakl Ors., I (2006)ACC 300 (SC). " V 2. It is not in dispute that the appellant was duly served and was represented by a counsel i.e. he had filed a written statement but thereafter chose not to be represented. The appellant contends that the earlier counsel did not attend to the case diligently and they got to know about the awarded compensation only whenthe recovery proceedings were initiated against the appellant. Theyclaim to have nowfiled a complaint against the counsel.

3. Be that as it may, it is noted that the complaint against counsel was preferred after the present appeal was filed; therefore, for the appellant to MAC.APP. 506/2016 Page 2 of[3] \ say that their counsel did not appear is not a sufficient enough ground for this Court to entertain the appeal. However, considering that there was nonrepresentation on behalf ofthe appellant after filing ofa reply on his behalf which was otherwise entrusted to his counsel, the default in this regard should not be saddled upon the appellant so as to prejudice his interests irreparably. Now only the validity of the driving licence is sought to be ascertained so as to determine the liability/ right to recovery between the appellant and the insurer. In view of the above, and in the interest ofjustice and upon payment of costs of Rs.50,000/- by the appellant to the respondent - insurer, the case isremanded back to the concerned Tribunal for determining this issue. The impugned award stands modified to this extent. The parties state that they will assist the Tribunal promptly and fully on each date ofhearing and will request for early disposal of the case, preferably within next three months. The statutory deposit ofRs. 25,000/- filed with this appeal shall be released to the respondent No.3/Insurance Company towards part payment of costs, the balance cost of Rs.25,000/- shall bepaid to respondent no.3 within three weeks from today. The parties are directed to appear before the Tribunal on 26.05.2017.

4. After digitization, LCR be sent back to the Tribunal through a special messenger, but before 25.05.2017.

5. The appeal alongwith pending applications stands disposed off in the above terms. MAY 11, 2017 sb MAC.APP. 506/2016 NAJMIAVAZIRI, J. C'*! tnijo Page 3 of[3] •a: \ \ ' )3 * IN THE HIGH COURT OF DELHI AT NEW DELHI + MAC.APP. 506/2016 SUSHIL KUMAR Petitioner Through: Mr. Neeraj Kumar, Adv.

VERSUS

JUSTICE NAJMIWAZIRI ORDER % 11.08.2017 CM No. 26829/2017 (for clarification of order dt. 11.05.2017) This application filed by the petitioner seeks clarification as to whether the remand of the appeal to the MACT, vide this Court's order dated 11.05.2017, would include determination of the issue: "Whether there was any breach of the conditions of the insurance policy on the part of the petitioner?" The Court had remanded the case to the Tribunal to ascertain the validity of the driving license so as to determine the liability/ right to recovery between the appellant and the insurer. Since the ascertainment of the validity of the driving license would determine the liability or otherwise oftheappellant, theaforestated issue would logically need to be adjudicated. Accordingly, the issue: whether there was any breach of conditions of the insurancepolicy, too shall be examined by the Tribunal.

V. The order of 11.05.2017 stands modified accordingly. The application is disposed off in terms ofthe above. Dasti.

AUGUST 11, 2017 NAJMIl^AZIRI, J