The Oriental Insurance Co. Ltd. vs Subhash Chander & Ors.
2011 Latest Caselaw 6056 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     MAC APPEAL NO. 176/2010

                           Date of Decision:   12th December, 2011


#     THE ORIENTAL INSURANCE CO. LTD.       ..... Appellant
                      Through: Mr. Arvind Gupta, Advocate


                              Versus


$     SUBHASH CHANDER & ORS.                  ..... Respondents
^         Through: Ms. Ruchi Sindhwani, Adv. for GNCTD
                   Mr. Dinesh Kumar Tiwary, Mr. Chandan Kr.
                   & Mr. Raghvender Tiwari, Advs. for R-5 & 6


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

                          ORDER

P.K.BHASIN, J:

This is an appeal under section 173 of the Motor Vehicles Act, 1988( the Act of 1988‟ in short) against the award dated 04-01-2010 given by the Motor Accidents Claims Tribunal(„MACT‟ in short) whereby the compensation found to be payable to the claimants, respondents 1-4 herein, was directed to be paid to them by the appellant herein being the insurer of the vehicle involved in the accident, which was a three wheeler(hereinafter referred to as „the insured vehicle‟) owned by respondent no.6 herein and driven by

respondent no.5 herein at the time of the accident and who has been found guilty of causing the death of one Raju due to rash and negligent driving of the three wheeler, but no right to recover the awarded compensation from respondent no.6 has been given to the appellant-insurer. The appellant-insurer has felt aggrieved by the denial of right to recover the compensation from the insured, respondent no.6 and hence this appeal came to be filed.

2. A claim petition under Section 166 of the Act of 1988 for getting compensation was filed by the respondents 1-4 herein, being the legal heirs of the deceased Raju.

3. The appellant-insurer‟s main objection in its written statement was "That even if it is proved that the alleged vehicle is involved in the alleged accident, the answering respondent cannot be held liable to pay the amount of compensation to the petitioners until it is proved that respondent no.1 having a valid and effective driving license at the time of the alleged accident and he was not disqualified to hold the same.......".

4. On the pleading of the parties following issues were framed by MACT for trial:-

"1. Whether the deceased had sustained fatal injuries on 30.06.2006 at about 06:15 P.M., at Ring Road, Lajpat Nagar due to rash and negligent driving of respondent No. 1 while driving vehicle No. HR-38-H-6648?

2. Whether petitioners are entitled to compensation? If so, what amount and against which of the respondents? OPP

3. Relief."

5. The learned MACT while holding the driver of the three wheeler guilty of causing the accident and the death of the deceased Raju by his rash and negligent driving awarded compensation of Rs.9,24,880/- to the claimants, respondents no.1-4 herein. Regarding the apportionment of liability amongst the appellant, owner of the insured vehicle and its driver the MACT observed as under in the impugned award:-

"16. The Insurance Company had taken the plea that the Driver of the offending vehicle was having a fake driving licence. It has led evidence of R3W2 Sh. Gulab Singh, who was the Record Clerk Licencing Authority Hissar, Haryana wherein he proved the fact that the driving licence bearing No. 39476 was issued in the name of one Mr. Hira Lal S/o Sh. Raghunath and not in the name of Dharmender.The Insurance Company have also produced its own officer R3W1 Sh. Vikram Singh, Administrative Officer wherein the proved that the policy conditions have been violated. However, the respondent No. 2 who is the owner of the offending vehicle also led his own evidence and stated that at the time of appointment of the Driver/Respondent No. 1, he had taken his driving test personally and found him fit to drive the offending vehicle and the driving licence was duly checked-up by the owner which he found to be genuine one. Though the Insurance Company have been able to prove that the driving licence of the driver of the offending vehicle was fake one but the owner had also duly checked-up the driving licence of the driver and had also taken his driving test personally. Therefore, in terms of the judgment of Hon'ble Supreme Court of India titled as New India Assurance Co. Ltd. Vs. Rula and Ors., date of judgment 07.03.2000. Hence, Insurance Company is not entitled to recovery certificate."

6. The only argument advanced by the learned counsel for the appellant was that the learned MACT after arriving at the finding that

the driver of the insured vehicle possessed a fake and forged license ought to have held the owner and driver were liable and should have absolved the appellant of any liability under the insurance policy which it had issued in favour of the insured, respondent no.6. The learned counsel for respondents no.5 and 6, on the other hand, supported the impugned decision of the MACT denying the right of recovery of the awarded compensation by the appellant-insurer from respondent no.6 and submitted that there is no scope for any interference in the impugned award by this Court.

7. After having considered the submissions made by the counsel of the appellant and respondents no.5 and 6 and going through the record I have come to the conclusion that this appeal is totally devoid of merits and is liable to be dismissed. The appellant in its written statement, relevant part whereof has already been extracted, had not pleaded that the insured had committed breach of any term of the insurance policy and so in the absence of such a plea the appellant- insurer could not get the right to recover the compensation from the insured and that too despite the fact that the MACT has returned the finding that the driving licence of respondent no. 5 was not genuine, though much can be said about the correctness of that finding since there was no evidence adduced during the trial that the licence found to be forged was being claimed by respondent no.5 herein to be belonging to him . The appellant had also not pleaded that the insured had allowed his driver to drive the insured vehicle knowing that he was not having the driving licence nor had led any evidence to rebut

the evidence of the insured that he had satisfied himself that his driver, respondent no.5, was having a proper driving licence. Therefore, the appellant could not expect to get any right of recovery against the insured.

8. This appeal, therefore, being devoid of any merit is dismissed.

P.K. BHASIN, J

DECEMBER 12, 2011