Delhi High Court
Canter Leasing & Finance (P) Ltd. vs National Insurance Co. Ltd. & Ors. on 26 July, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 26th July, 2011
+ MAC Appeal No. 638/2010
CANTER LEASING & FINANCE (P) LTD. ...........Appellant
Through: Mr. R.K. Kohli, Advocate.
Versus
NATIONAL INSURANCE CO. LTD. & ORS. ..........Respondents
Through: Mr. Manoj R. Sinha, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. The appellant before this court is the owner of the vehicle
which was the subject matter of the accident. The claimants Sh.
Satpal Dhingra and Smt. Panchano Dhingra had claimed
compensation on account of the death of their son Jatindra
Dhingra in the fateful accident which was occurred on
05.12.1995; the driver of the vehicle was Kala; the vehicle had
been registered in the name of the Canter Leasing & Finance (P)
Ltd. (respondent No. 2); it was insured with the National
Insurance Co. Ltd. (respondent No. 3). The driver and the owner
i.e. respondent No. 1 and 2 had been proceeded ex parte. Petition
had been contested by the Insurance Company alone. The Award
had been passed in favour of the claimants on 22.04.2004.
Recovery rights had been awarded in favour of the Insurance
Company. Thereafter on an application under Order 9 Rule 13 of
the Code of Civil Procedure filed by the owner of the vehicle, his
application was allowed; the owner was given an opportunity to
prove his defence.
2. The owner is the appellant before this court. He had
examined two witnesses to support his case. He had examined
Rakesh Kumar as R2W1 and Rajesh Arora as R2W2; his defence
was that he had given this vehicle to Raj Kumar Gupta by way of
lease under whose control and management it was; Raj Kumar
Gupta had employed driver Kala; he was a licensed and a skilled
driver; in fact the owner/appellant had himself diligently checked
the license of the driver Kala and there was no reason to suspect
his license; his driving had also been tested by the appellant.
3. Testimony of the two witnesses examined on behalf of the
owner is relevant. They were R2W1 Rakesh Kumar, he was the
field officer of the owner i.e. of the Canter Leasing & Finance (P)
Ltd. This witness was the employee of the Raj Kumar Gupta; he
was not an employee of the appellant. He had admitted that he
himself had not checked the driving license of the driver; one of
his officials had carried out a test check of the driving skills of the
driver namely Kala. The second witness examined on behalf of the
appellant was R2W2 namely Rajesh Arora; he had deposed that
the driving license of the driver had been seen by him. A perusal
of this license shows that it was issued on 18.11.1991; it was
shown as valid upto 17.11.1999 admittedly this vehicle was a
commercial vehicle; license for a commercial vehicle is valid for a
period of three years; the validity of this license was up to
17.11.1994 which itself casts a doubt and suspicion on this license
as in terms of Section 14 of the Motor Vehicles Act the license for
a transport vehicle has a life only for a period of three years. The
statements of these witnesses thus do not advance the submission
of the appellant/owner that all reasonable care had been taken by
the appellant to ensure that a valid driving license was held by the
driver; in fact, a perusal of the driving license (as noted supra)
shows that it was issued on 18.11.1991; it's validity had expired in
the year 1994; but the renewal shows that it was renewed on
17.11.1999.
4. It was in these circumstances and in this factual scenario
that recovery rights had been granted to the Insurance Company
against the owner.
5. Admittedly, this vehicle is registered in the name of the
appellant. The lease agreement/R2W1/2 makes it clear that the
appellant could have asked Raj Kumar Gupta to indemnify the loss
suffered by it. However, he did not make any efforts to do so.
6. Reliance placed by the learned counsel for the appellant on
the judgment of 2004 ACJ titled as National Insurance Co. Ltd. vs.
Swaran Singh & Ors. is of no help. The question as to whether
reasonable care has been taken by the owner to check as to
whether the driving license produced by the driver is fake or
otherwise has to be determined in the facts of each case.
7. In ILR (2007)II Delhi 733 titled as New India Assurance Co. Ltd.
vs. Sanjay Kumar & Ors. a Bench of this court had noted that
where initial onus has been discharged by the Insurance Company
and the Insurance Company has been able to show that the
driving license is fake/invalid and the owner is not able to
disprove this; the Insurance Company makes out a case of
recovery against the owner. This is so in the instant case as well.
8. Appeal has no merit. Appeal is dismissed.
(INDERMEET KAUR)
JUDGE
July 26, 2011/rb
