* THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC APPEAL No.12/2009
Reserved on: 19.08.2011
Pronounced on: 26.08.2011
NATIONAL INSURANCE COMPNAY LTD. ...... Appellant
Through: Mr. Pradeep Gaur, Advocate
Versus
MANISH JAIN & ORS. ...... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be reported
in the Digest ? No
M.L. MEHTA, J.
1. This appeal is directed against the Award dated 27th September, 2008 passed by learned Presiding Officer, MACT, New Delhi under Section 166 and 140 of Motor Vehicle Act, 1988 ("the Act" for short).
2. On 18th April, 1997 respondent Manish Jain was going on his two- wheeler scooter when he was hit by a truck bearing registration number HYW 6453. The offending vehicle was owned by respondent no.2 and was being driven by respondent no.3. The petitioner filed a claim petition against the appellant and respondent no.2 (owner) and respondent no.3 (driver). Vide the impugned award, a sum of `59,300/- MAC Appeal No12/2009 Page 1 of 4 was awarded as compensation to claimant/ injured with interest @ 9% per annum from the date of filing of the petition i.e. 16 th January 1998. The appellant being the insurer of the aforesaid vehicle was directed to pay the awarded sum within 30 days of the Award failing which interest @ 12% per annum for the delayed period was to be payable.
3. The appellant has challenged the aforesaid award in this appeal. The only ground urged by the appellant is that it was not liable to pay compensation since there was a breach of terms and conditions of the policy by the owner. In this regard, it is alleged that the offending vehicle was being driven by the driver without having a valid driving license. Based on this premise, it is alleged that the appellant was not liable to pay compensation since the offending vehicle was being driven by the driver without holding a valid driving license in violation of the terms and conditions of the policy and that the appellant was entitled to have recovery rights of the awarded amount from the owner as well as driver of the offending vehicle.
4. In respect of the defence of non-liability of the appellant to pay compensation and in any event to have the right of recovery from the owner as noted hereinabove, the learned Tribunal recorded that the appellant has failed to prove its defence by leading substantial and cogent evidence. It was observed by the Tribunal that the appellant legally failed to prove the driving license and the insurance policy of the offending vehicle.
MAC Appeal No12/2009 Page 2 of 4
5. I have heard learned counsel for the appellant insurance company. None appeared for the respondents despite service.
6. In order to prove that the license bearing number 19861/D/87 as produced by the driver was a fake one, the appellant examined R1W2 an official from RTO, Dehradun who categorically deposed that no license of this number was issued in the name of Satbir (driver) in the year 1987. The witness had brought the original record pertaining to the licenses issued from S.No. 19717 to 19916. This was factually found to be correct by the Tribunal also which made observations in this regard. This witness maintained that no license of this number was issued and further that the said license was not a valid one. This fact was also verified by the appellant/ insurance company through its investigator from the Licensing Authority, Dehradun. The investigator also reported in the same manner. Thereafter, driver Satbir submitted another copy of driving license purported to be issued by Licensing Authority, Firozabad. This was also verified by the appellant through its investigator, who vide his report obtained report of Licensing Authority, Firozabad which was to the effect that driver Satbir was authorized to drive light motor vehicle. That being the factual position on record, the driver Satbir can be said to be in possession of a driving license for driving light motor vehicle only at the time of accident. Driving of heavy vehicle like truck by the driver may not only be in violation of Section 3(1) of the Act, but prima facie may be in violation of the terms of insurance policy. In such circumstances, the appellant was not liable to indemnify to discharge the liability of the insured, however, since the MAC Appeal No12/2009 Page 3 of 4 appellant is statutorily liable to indemnify and pay compensation to the insured, a third party, in the given circumstances of breach of terms of insurance policy, it would be entitled to effect recovery payable by it to the insurer/ claimant from the insurer /driver. The learned Tribunal seems to have erred in appreciating the evidence properly and has summarily denied the appellant this right to have recovery rights.
7. In view of this discussion, the impugned award is modified to the extent that the appellant shall have recovery rights from the owner and driver of the vehicle in appropriate proceedings in accordance with law.
8. The appeal stands disposed of accordingly.
M.L. MEHTA (JUDGE) August 26, 2011 rd MAC Appeal No12/2009 Page 4 of 4