Delhi High Court
Mohan Lal Kanojia vs S.K. Jain & Anr. on 23 November, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st November, 2011
Pronounced on: 23rd November, 2011
+ MAC APP. 185/2008
MOHAN LAL KANOJIA ...... Appellant
Through: Mr. Rajeev Saxena Advocate
Mr. Rajat Mittal, Advocate.
Versus
S.K. JAIN & ANR. ..... Respondents
Through: Mr. J.P. N. Shahi Advocate for
R-2/OIC.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order?
2. To be referred to the Reporter or not?
3. Whether the Order should be reported
in the Digest?
JUDGMENT
G. P. MITTAL, J.
1. Appellant Mohan Lal Kanojia challenges the award dated
13.04.2007 passed by the Motor Accident Claims Tribunal (the
Tribunal) granting compensation of ` 11,9,279/- whereby the
Respondent No.2 The Oriental Insurance Company Limited was
directed to make payment of the awarded compensation with a
right to recover the same from the Appellant who was the owner
of the offending Bus No. DL-IP-5284 on the ground that the
driver did not hold a valid and effective driving license at the
time of the accident.
2. During the pendency of the Appeal an Affidavit was filed by the
Appellant stating that the driving license bearing
No.C970205511 was issued by Anand Vihar Transport
Authority and that the fact had been verified by the Transport
Department in response of the RTI application filed by the
Appellant. A photocopy of the driving license was also placed
on record.
3. In the Counter Affidavit filed by the Insurance Company, it was
stated that the license was verified from the Licensing Authority
Mayur Vihar (and not from the Licensing Authority Anand
Vihar). It was not disputed by the learned counsel for
Respondent No.2 Insurance Company that the particulars given
concluded that the licence issued by the Anand Vihar Transport
Authority was a genuine. It is, however, urged by the learned
counsel for Respondent No.2 that negligence on the part of the
driver was not established as the FIR No.165/1998 of Police
Station Tilak Marg was sent as untraced.
4. The Tribunal referred to and relied upon PW-7's testimony
(examined before the Tribunal) to arrive at the conclusion that
there was negligence on the part of the bus driver.
5. PW-7 stood the test of cross-examination. His testimony
regarding negligence of the driver of the bus was not disputed in
cross-examination. Thus, the negligence on driver's part was
established. I do not find any reason to set aside the said
findings.
6. It is urged by the learned counsel for Respondent No.2 that
though the genuineness of the driving licence has now been
proved, yet the owner failed to prove the validity of the bus's
permit. Thus, the impugned award could not be interfered with.
7. Respondent No.2 contested the Claim Petition before the
Tribunal by filing written statement but did not take up the plea
that the owner did not have a valid permit to drive the bus on
the route on the date of the accident. This plea is not available
to Respondent No.2. It is settled that the onus is on the
Insurance Company to prove that there is breach of terms of the
policy. The Insurance Company has failed to do so and a mere
argument during hearing of the Appeal is of no consequence.
8. Since the driver of the offending bus did possess a valid and
effective driving license, the Insurance Company was under
obligation to indemnify the Appellant being owner of the bus.
9. The Appeal is allowed and the impugned award is modified to
the extent that the Respondent No.2 Insurance Company shall
not be entitled to recover the compensation from the Appellant
i.e. owner of the bus.
10. The appeal is disposed of in above terms. No costs.
11. Copy of the order may be sent to the trial court for information
and compliance.
(G.P. MITTAL)
JUDGE
NOVEMBER 23, 2011
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