National Insurance Compnay Ltd. vs Manish Jain & Ors.
2011 Latest Caselaw 4169 Del

*             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/-

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.

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

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