Oriental Insurance Co. Ltd. vs Ram Raj Singh & Ors
2011 Latest Caselaw 4744 Del

                                      UNREPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  FAO 783/2003

      ORIENTAL INSURANCE CO. LTD.           ..... Appellant
                      Through: Mr. J.P.N.Shahi, Advocate.
               versus
      RAM RAJ SINGH & ORS                    ..... Respondents
                      Through: None.

%                 Date of Decision : September 23, 2011
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                         J U D G M E N T (ORAL)

: REVA KHETRAPAL, J.

1. The only ground sought to be urged in this appeal is that the

learned Motor Accident Claims Tribunal by its impugned judgment

dated 05.07.2003 has wrongly awarded a sum of ` 1,49,000/- as

compensation to the respondent No.1 with interest thereon despite the

fact that the alleged offending bus was driven by one Brij Pal Singh,

who had produced a licence bearing No.B-1810/Agra/91, which was a

fake licence.

2. Reliance is placed by the appellant in this context upon the

testimony of RW1-Shri Rajeshwar Nath Tiwari, Junior Clerk, Office

of RTO, Agra, U.P. recorded on 27.02.2000, the relevant portion of

which reads as follows:

"I have brought the relevant D/L issue register of RTO, Agra pertaining entries of issue of D/L w.e.f. 6.11.90 to 9.2.93. As per our record, no D/L was issued in the name of Brij Pal Singh S/o Mahavir Singh on 15.9.91 with the number B-1810/Agra/91."

3. Apart from the aforesaid evidence, admittedly no other

evidence was adduced by the appellant, and thus there is no evidence

on record to show that the insured was aware of the fact that the

driving licence of his driver was a fake one.

4. The law on the subject of fake driving licence is well-settled by

the judgment of a three-Judge Bench of the Hon'ble Supreme Court

reported in 'National Insurance Company Limited versus Swaran

Singh and Others (2004) 3 SCC 297, wherein it is summarized as

under:

"SUMMARY OF FINDINGS :

106. The summary of our findings to the various issues as raised in these petitions are as follows:

(i) ............

(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.

(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub- section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle;

the burden of proof where for would be on them.

(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.

(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case."

5. In the present case, there is not an iota of evidence to show that

the insured was aware of the fact that the driving licence of his driver

was a fake one nor there is an assertion in this regard.

6. In view of the aforesaid, there is no merit in the present appeal,

which is accordingly dismissed.

REVA KHETRAPAL (JUDGE) September 23, 2011 ak