NATIONAL INSURANCE CO. LTD. Vs. NAWAB & ORS.

JUDGEMENT

(1.) THE appellant has challenged the common award of the Claims Tribunal to the limited extent that the Claims Tribunal has not granted the recovery rights to the appellant to recover the award amount from the owner of the offending vehicle. The accident dated 1st September, 1995 resulted in death of Sanjay Kumar and Hari Singh. Late Hari Singh and Late Sanjay Kumar were travelling in dumper No. HR -38 -9458 being driven by Late Hari Singh. When the said dumper reached main Najafgarh Road, opposite Pooja Service Station, it was hit by tanker No. HR -39 -0227 coming from the opposite direction. The tanker was being driven by its driver, Bir Singh in a rash and negligent manner at a very high speed. The petroleum being carried in the dumper caught fire due to which Late Hari Singh and Late Sanjay Kumar were burnt to death and the dumper was also completely damaged. Three claim petitions were filed before the Claims Tribunal. Two claim petitions were filed by the legal representatives of Late Hari Singh and Late Sanjay Kumar whereas the third claim petition related to damage to the dumper by its owner.

(2.) THE appellant contested the claim petitions on the ground that the driver of the tanker was holding a fake driving licence and, therefore, the appellant is entitled to recovery rights against the owner of the tanker. The appellant examined its officer Ajay Kumar as R1W1 who proved the notice under Order 12 Rule 8 of the Code of Civil Procedure issued to the driver and owner of the offending vehicle. The said notice along with postal receipts and AD cards were proved as Ex. R1W1/2 and Ex. R1W1/5. R1W1 proved that the claim form filed by the owner of the offending vehicle in which the particulars of the driving licence of the driver were mentioned. R1W1 deposed that the details of the driving licence were verified by the insurance company from Ajmer and Hissar. The verification reports were marked as Mark 'B' and 'C'. As per the said reports, the driving licence had been issued in the name of Iqbal Singh son of S.N. Singh in respect of the motor cycle on 11th September, 1988. The appellant also examined the officer from Road Transport Office, Ajmer as R1W2. R1W2 produced the licence register and deposed that no licence bearing No. 47518 was ever issued by the authority to the driver of the offending vehicle.

(3.) LEARNED counsel for the appellant has urged at the time of hearing of these appeals that the finding of the Claims Tribunal is erroneous. It is submitted that the appellant issued the notice under Order XII Rule 8 of the Code of Civil Procedure to the owner as well as the driver of the offending vehicle which was proved as Ex. R1W1/2 and both of them failed to respond to the notice despite service. It is further submitted that the appellant successfully proved the driving licence of the driver to be fake. It is further submitted that the owner of the offending vehicle has not led any evidence to prove that he had taken reasonable care and the breach on his part was not willful. It is submitted that the appellant is entitled to recovery rights against the owner of the offending vehicle. Learned counsel for the appellant relies upon National Insurance Company Ltd. v. Swaran Singh, : (2004) 3 SCC 297, National Insurance Company Ltd. v. Kusum Rai, : (2006) 4 SCC 250 and Kusum Lata v. Satveer, : (2011) 3 SCC 646.