Delhi High Court
Chander Shekhar Divedi vs The Oriental Insurance Co. & Ors. on 14 December, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 1st December,, 2011
Pronounced on: 14th December, 2011
+ MAC. APP. 373/2009
CHANDER SHEKHAR DIVEDI ..... Appellant
Through: Mr. Achal Chhabra, Adv.
Versus
THE ORIENTAL INS. CO. & ORS. ..... Respondents
Through: Ms. Manjusha Wadhawa with
Ms. Angana Goswami, Advocates for
R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J.
1. This Appeal is directed against the award dated 15.09.2006
passed by the Motor Accident Claims Tribunal (the Tribunal)
whereby a compensation of ` 1,78,509/- was awarded in favour
of the Claimants i.e. Respondents No.3 to 5 before the Tribunal.
The Tribunal made the Appellant liable to pay the
compensation. It directed Respondent No.1 the Oriental
Insurance Co. Ltd. to pay the compensation in the first instance
with a right to recover it from the Appellant on the ground that
the Appellant was the registered owner of the vehicle. It was
held that the driver of the offending vehicle Pappu Singh did not
possess a valid driving licence on the date of the accident i.e.
16.10.2002. The Claimants before the Tribunal (Respondents
No.2 to 4 and the driver Respondent No.5) have not been
impleaded in this appeal.
2. The Appellant is aggrieved by the impugned order on the
ground that as he had transferred the vehicle admittedly in
favour of Respondent No.2 (Harlal Sharma) he could not have
been fastened with the liability. Respondent No.2 Harlal
Sharma did not dispute before the Tribunal that he had
purchased vehicle No.DL-1VA-2362 on 24.09.2002 on the
basis of an agreement to sell. Thus, even if it is assumed that
the driver Pappu Singh did not hold a valid driving licence on
the date of the accident and the Insurance Co. had successfully
proved that there was intentional breach of the terms of the
insurance policy by the insured i.e. Appellant herein. As he
had transferred the offending vehicle in favour of Respondent
No.2 (herein) he also had the right of recovery against
Respondent No.2 if Insurance Co. recovered the awarded
compensation from the Appellant.
3. While perusing the Trial Court record a very intriguing aspect
has been discovered. The Appellant (herein) being the
registered owner did not contest the proceedings after he had
transferred the offending vehicle in favour of Harlal Sharma
(Respondent No.2 herein). It seems that the conduct of the case
on behalf of the Respondent No.2 was equally negligent
because in view of the specific evidence in the shape of RW-2
Shri Makhan Singh's testimony it could not have been said that
Pappu Singh, the driver of the offending vehicle did not possess
a valid driving licence to drive the Mini Bus. I would extract
RW-2's testimony hereunder for the sake of convenience: -
"I have brought the original driving licence
register regarding the driving licence No.N-
982/MTR/99 issued in the name of Pappu Singh
S/o. Ved Pal, R/o Krishna Ngr, Mathura. The said
licence was dt. 28.12.99 issued for motorcycle plus
LMV private and endorsement of HTV PE dt.
3.1.01. The validity of th licence is from 3.1.04 to
2.1.07.
xxx by counsel for petnr.
Nil (opportunity given).
xxx by counsel for insurance company
I have seen the original licence issued in the
name of Pappu Singh. Copy of the same is Ex.
RW-2/X-1. It is wrong to suggest that this licence
was not issued from our office or that it was not
for LMV and HTVP. It is wrong that on 16.10.02
the licence was not valid."
4. It is important to note that RW-2 was specific that the licence
No.N-982/MTR/99 was issued in the name of Pappu Singh, S/o.
Ved Pal, R/o. Krishna Nagar, Mathura for a Motorcycle and
LMV on 28.12.1999. An endorsement to drive HTV was made
on 03.01.2001. As per Section 14 (2) (a) of the Motor Vehicles
Act a licence to drive the transport vehicle shall be effective for
a period of 3 years. Thus it would be seen that the endorsement,
which was made on 03.01.2001 was valid up to 02.01.2004.
The licence was again renewed w. e. f. 03.01.2004 up to
02.01.2007. It is thus clear that the licence was valid on
16.10.2002 to drive a Mini Bus. A perusal of the cross-
examination of RW-2 Makhan Singh on behalf of the Insurance
Company would disclose that a suggestion was given to him
that the licence was not valid on 16.10.2002 which was denied
by him. Though, the Tribunal noticed the testimony of RW-2
Makhan Singh yet it fell into error in observing that the licence
was valid only for the period 03.01.2004 to 02.01.2007. The
onus was on the Insurance Co. to show that the licence was not
valid on the date of the accident i.e. 16.10.2002 [National
Insurance Co. Ltd. v. Swaran Singh & Ors., (2004) 3 SCC 297].
5. The Insurance Co. has failed to discharge the onus to prove that
the licence was not valid on 16.10.2002. Rather, there is ample
evidence to show that Pappu Singh driver of the Mini Bus had
an effective and valid licence on 16.10.2002. The Insurance
Co. could not have been granted recovery rights against the
Appellant.
6. The appeal is accordingly allowed and the impugned award is
set-aside to the extent that it grants recovery right to the
Respondent No.2.
7. The appeal is allowed in above terms. No costs.
(G.P. MITTAL)
JUDGE
DECEMBER 14, 2011
hs
