Nand Kishor vs Amit Waliya & Ors.
2011 Latest Caselaw 4902 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             MAC. APP. No.366 of 2006

                            RESERVED ON: 19th August, 2011
%                           PRONOUNCED On:30th September, 2011


      NAND KISHOR                                      . . . APPELLANT

                              Though:     Mr. S.P. Jha, Advocate with
                                          Mr.    Vikrant   Bharadwaj,
                                          Advocate.


                              VERSUS

      AMIT WALIYA & ORS.                            . . .RESPONDENTS

                              Through:    Mr.    Surender  Chauhan,
                                          Advocate with Mr. Anand
                                          Kumar Sharma, Advocate for
                                          Respondent No.1.

                                          Mr. Manoj Ranjan Sinha,
                                          Advocate for  Respondent
                                          No.2.

CORAM :-
    HON'BLE MR. JUSTICE A.K. SIKRI

      1.    Whether Reporters of Local newspapers may be allowed
            to see the Judgment?
      2.    To be referred to the Reporter or not?
      3.    Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The claimants who filed the petition before the Motor Accident

Claim Tribunal ('the Tribunal' for brevity) under Sections 166

and 144 of the Motor Vehicle Act (hereinafter referred to as

'the Act') for claiming compensation on account of death of Raj

Kumar Jolly (deceased) in a road accident which took place on

20th January, 2001 at about 8.30 P.M. The deceased was

walking on foot to the Saturday Market to purchase vegetables.

When he reached near Kakkar Property Dealer and was on the

road in front of park near house No.BE-374/A, Hari Nagar, he

was knocked down by a scooter No.DDR 1756, which was

driven by one Amit Waliya (minor driver). It is not in dispute

that Amit Waliya was a minor and was not holding any driving

license. The case of the claimants was that the minor driver

was driving the offending vehicle at a high speed recklessly and

negligently, which hit the deceased with a great force because

of which the deceased suffered fatal injuries and died. The

claimants had impleaded the minor driver as the respondent

No.1. The appellant herein, who was the owner of the said two-

wheeler scooter and National Insurance Company with which it

was insured as the respondent No. 2 & 3 respectively.

2. It has been conclusively established and proved before the

Tribunal, on the basis of evidence on record, that the deceased

received fatal injuries and died on account of rash and

negligent driving of scooter in question, which was driven by

the minor driver. Compensation of `12,80,000, on that basis is

awarded to the four claimants, viz. widow of the deceased and

three children of the deceased. The findings of the learned

Tribunal on the aforesaid aspect including on the amount of

compensation are not under challenge in this appeal and

therefore, it is not necessary to state the same in detail. In

this appeal, we are concerned with altogether different

question. While awarding the compensation in favour of the

claimants and directing the insurance company to pay the

same in the first instance, the insurance company has been

given right to recover the said amount from the appellant

herein. The appellant is aggrieved by this direction of the

Tribunal permitting the insurance company, the amount

recovered from him. As we are concerned with this limited

issue, only those facts which are necessary to determine this

question in the instant appeal have been mentioned.

3. The reason given by the Tribunal in support of the aforesaid

view taken by it is that the minor driver was not having any

driving license and it has been established that he was driving

the offending vehicle which belonged to the appellant herein.

The Tribunal has further stated that it was not the case of the

appellant that he had never authorized the minor driver to

drive the offending vehicle. This led the Tribunal to conclude

that the appellant violated the terms and conditions of the

insurance company by authorizing a minor driver to drive his

vehicle without holding a proper and valid license and

therefore, insurance company cannot be liable to be held to

pay the compensation under the terms and conditions of the

policy, following the judgment of the Supreme Court in the

case of United Insurance Company Ltd. Vs. Swarn Singh

& Ors.[2004 (3) SCC 297].

4. Challenging the aforesaid findings of the learned Tribunal, the

learned counsel for the appellant submitted that before the

Tribunal, the appellant took up the defence that his son was

not involved in the accident. Alternate plea was taken that the

appellant had not given any consent or permission to the minor

to drive the said vehicle. The said minor driver was a stranger

to him and there was neither express nor implied any

permission was granted to him to drive the scooter. It was

also the defence that since the scooter in question was insured

with the insurance company and the policy was valid even on

the date of accident, it was the insurance company which was

to bear the liability. It was, thus, argued that there was no

violation of the terms and conditions of the insurance company

and no liability could be fastened to the appellant. Learned

counsel for the appellant referred to the following judgments in

support of his submission:

(i) National Insurance Company Ltd. Vs. Swarn Singh & Ors. [2004 (3) SCC 297];

(ii) United India Insurance Company Ltd. Vs. Lehru & Ors. [(2004) 3 SCC 297];

(iii) Suresh Mohan Chopra Vs. Lakhi Prabhu Dayal and Ors. [1990 (Supp.) SCC 696];

(iv) V. Mepherson and Anr. Vs. Shiv Charan Singh & Ors. [1998 (ACJ) (Delhi) 601].

5. It was argued that in all the aforesaid judgments, consistent

view taken by the Courts was that it is the legal and

contractual obligation of the insurance company to pay the

claim of compensation arising in case of accident and this

liability can be repudiated by the insurance company only in a

case of exception and such an order is to be passed only in

cases when there is a proven breach of terms and conditions of

insurance policy committed by the insured. It was argued that

in the present case, the appellant had denied his liability and

involvement of his scooter in accident. However, the insurance

company had not even suggested that there was any violation

of the terms and conditions of the insurance policy. No such

question was put in the cross-examination of the appellant.

Therefore, it was never the case of the insurance company that

the appellant had committed any breach of the insurance policy

as prescribed under Section 149(2) of the Act. In absence of

such a plea and for want of cross-examination of the minor

driver, the insurance company could not be allowed to recover

the amount from the appellant.

6. The learned counsel for the insurance company, on the other

hand, relied upon the reasons given by the Tribunal and

submitted that the factual position established on record was

sufficient to hold that there was a breach and violation of terms

and conditions of the policy by the appellant and legal

consequences thereon had to ensue.

7. I have considered the submissions of the learned counsel for

both the parties. The principle of law which is culled out from

the judgments relied upon by the learned counsel for the

appellant and stated in his argument is beyond any pale of

doubt. It does not require any emphasis to state that once the

vehicle is insured, the insurer is indemnified for the loss or

payment of compensation from the third party as a result of

accident in which the insurer is involved. Liability is armed by

the insurance company in such circumstance and therefore, it

becomes obligation of the insurance company to pay the claim

to the victim of the accident. It is also not in dispute that the

payment of compensation by the insurance company is a rule

and denial of the same and right to recover from the said

insurance company is exception. This exception comes into

play only when there is a breach of terms and conditions of the

insurance policy by the insurer.

8. The moot question is as to whether in the instant case, such a

violation is committed by the appellant. It is not in dispute

that as per the terms of the insurance policy, it was incumbent

that the insured vehicle is driven by a person holding valid

license. In the instant case, it is not in dispute that the

offending vehicle was driven by a minor who was not holding

any license. Therefore, this aspect is duly proved on record.

9. In the backdrop, the only aspect which needs to be examined

is as to whether the appellant had authorized the said minor to

drive the vehicle. To ascertain this defence put up by the

appellant as well as the minor driver becomes very material.

Curiously, the defence of the minor driver was that of

complete denial viz he was not even driving the vehicle at all

on the date of accident at any time and he had been dragged

into the said case with mala fide intentions and ulterior

motives. This defence of the said minor ultimately turned out

to be false. During the cross-examination, he admitted that he

was arrested in the said accident. He also admitted that he

was not having any driving license. The Police, after

investigation, had even filed the Challan under Section 3/181

of the Act, as per which minor driver was driving the offending

vehicle. Therefore, what has been proved on record is not only

that the vehicle was driven by Amit Waliya, a minor, the

vehicle involved in the accident was this very scooter which

belonged to the appellant.

10. With this, let me point out the defence which was taken by the

appellant in the written submission filed by him before the

Tribunal. The stand of the appellant was also that of the

complete denial of the involvement of scooter in the accident.

He had only stated that scooter No. DDR 1756, which

concededly belonged to the appellant was not involved in the

alleged accident on 20th January, 2001. He had stated that the

accident was not caused by that scooter. He had further stated

that scooter was not being driven by the minor driver and

therefore, he was not vicariously liable to pay the

compensation amount. No plea whatsoever was taken by the

appellant that he had not authorized the minor driver to drive

the vehicle. Once the defence of the appellant, viz., vehicle in

question was not involved in the accident and the said vehicle

was not driven by Amit Waliya, the minor driver has been

proved to be false and it has been proved that his scooter was

involved in the accident, which was driven by a minor who was

not holding a valid license, no further proof was required to

arrive at a finding that there was a violation of the terms and

conditions of the insurance policy. In the aforesaid factual

backdrop, if the appellant wanted to allege that he had not

authorized the minor driver to drive his vehicle, it was for him

to specifically take such a plea. However, instead of taking this

plea, the appellant took a calculated risk by putting forth a

false defence, viz., that the scooter was not involved in an

accident and it was not even driven by a minor driver at the

time of accident. When scooter belonged to the appellant, who

was the owner thereof, under what circumstance, it came into

possession of the minor driver who was driving the said scooter

at the time of accident had to be stated by the appellant. No

plea was raised by him that this scooter was unauthorisedly

taken away by the said minor. No case was pleaded that the

appellant had made any complaints to the police officials in this

behalf. If the appellant wanted to state that his scooter had

been stolen by the minor driver or was unauthorisedly

removed, which was a feigned suggestion moved at the time of

arguments it was for him to plead and prove the same.

11. I, thus, find no merit in this appeal, which is accordingly

dismissed.

12. No costs.

(A.K. SIKRI) JUDGE SEPTEMBER 30, 2011 pmc