NATIONAL INSURANCE CO. LTD. Vs. SUSHILA DEVI

JUDGEMENT

(1.) Challenge in the present appeal has been directed against award dated 05.03.2009 passed by the Motor Accidents Claims Tribunal, Hisar to the limited extent that the insurance company is entitle to have right of recovery against the insured on the question of driving licence.

(2.) Counsel for the appellant would argue that in respect of occurrence dated 03.05.2004, the claim application was filed on 31.03.2005 and name of driver of offending vehicle was not given in the claim application and it was mentioned that particulars of the driver would be supplied by respondent No.1 therein namely Jitender, owner of offending tempo No.HR-39-3423. It is further submitted by referring to para 3 of the award that Jitender was initially proceeded against ex parte vide order dated 29.08.2005 passed by the Tribunal. Later, he filed an application for setting aside ex parte order dated 29.08.2005 which was allowed on 10.04.2006 and case was fixed for filing of particulars of respondent No.2 but Jitender did not furnish the particulars till 07.05.2007 but again opted to be proceeded ex parte. It is vehemently argued that the very fact that Jitender did not supply particulars of driver of offending vehicle for a period of more than one year since ex parte proceedings were set aside and until he was proceeded ex parte for the second time, in case application filed by Jitender under Section 151 CPC for placing on record copy of driving licence of Telu Ram is allowed, it would amount to leading evidence even without impleading driver of the vehicle with his complete particulars. It is further argued that as per investigation conducted by the insurer, Jitender himself was driver of offending vehicle and for that reason, he did not supply particulars of the driver. Counsel would inform that the appeal was filed in the year 2009 and service of respondents therein was also completed in the year 2009 but application under Section 151 CPC has been filed by Jitender in October, 2018 with a clever attempt to counter claim of the insurance company for giving right of recovery against the insured.

(3.) Counsel representing respondent No.5, on the contrary, would argue that respondent has filed the aforesaid application to place on record driving licence Annexure R5/1 possessed by Telu Ram, driver of offending vehicle on the date of alleged occurrence. It is further argued that respondent No.5 has also filed an application under Order 41 Rule 27 read with Section 151 CPC seeking permission to adduce additional evidence by producing driving licence of Telu Ram Annexure R5/1. It is argued that as Telu Ram, driver of offending vehicle was holding a valid licence, contention raised by insurance company that insured is guilty of violating the terms and conditions of policy for want of valid driving licence with driver sans merit and liable to be rejected.