Delhi High Court
Delhi Transport Corporation & ... vs National Insurance Co Ltd & Anr on 23 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd April, 2012
+ MAC.APP. 361/2010
DELHI TRANSPORT CORPORATION & ORS..... Appellant
Through: Ms. Latika Chaudhary,
Advocate
versus
NATIONAL INSURANCE CO LTD & ANR..... Respondent
Through: Mr. Ranjan Kumar Pandey,
Advocate with Mr. K.K. Bhat,
Advocate for R-1.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The Appellant Delhi Transport Corporation impugns the
judgment dated 09.02.2010 solely on the ground that while
awarding a compensation of `74,600/- in favour of Respondent
No.2 for having suffered injuries in an accident which occurred
on 11.08.2007, the Claims Tribunal erred in granting recovery
rights simply on the ground that there was no Fitness Certificate
for the vehicle involved in the accident on that day.
2. Reliance is placed on National Insurance Co. Ltd. v. Nicolletta
Rohtagi & Ors., III (2002) ACC 292 (SC), where it was held
that defence available to the Insuranec Company is limited to
the one as provided under Section 149 (2) of the Motor Vehicles
Act (the Act). Para 14 of the report is extracted hereunder:-
"14. It is relevant to note that the Parliament, while
enacting Sub-section (2) of Section 149 only specified
some of the defences which are based on conditions
of the policy and, therefore, any other breach of
conditions of the policy by the insured which does not
find place in Sub-section (2) of Section 149 cannot be
taken as a defence by the insurer. If the Parliament
had intended to include the breach of other
conditions of the policy as a defence, it could have
easily provided any breach of conditions of insurance
policy in Sub-section (2) of Section 149. If we permit
the insurer to take any other defence other than those
specified in Sub-section (2) of Section149, it would
mean we are adding more defences to insurer in the
statute which is neither found in the Act nor was
intended to be included."
3. It is urged by the learned counsel for the Respondent Insurance
Company that under Section 56 of the Act, the vehicle without a
Fitness Certificate shall not be deemed to be validly registered
for the purpose of Section 39 of the Act. It is also urged that the
judgment in Nicolletta Rohtagi (supra) was overruled by the
Supreme Court in its later decision in United India Insurance
Company Ltd. v. Shila Datta & Ors., Civil Appeal Nos. 6026-
6027/2007 decided on 13.10.2011.
4. It may be mentioned that the findings reached by the three
Judges Bench in Nicolletta Rohtagi (supra) were not overruled
with regard to the statutory defences available. It was laid down
that where an Insurance Company is impleaded as a party in a
Claim Petition it can contest the Claim Petition on all grounds.
In other words, an Insurance Company is entitled to contest the
Claim Petition on the factum of negligence and the quantum of
compensation also. The question of non possession of a valid
Fitness Certificate was not an issue raised in Shila Datta
(supra).
5. In view of the law laid down and the clear provision of Section
149 (2) of the Act, the defences available to the Insurance
Company to avoid the policy are upto only those ones which are
incorporated therein.
6. The Claims Tribunal erred in granting recovery rights against
the Appellant.
7. The Appeal is allowed and the impugned judgment to the extent
it granted recovery rights is set aside.
8. The Appeal is allowed in above terms.
9. The statutory deposit of `25,000/- shall be refunded to the
Appellant DTC.
10. Pending applications also stand disposed of.
(G.P. MITTAL)
JUDGE
APRIL 23, 2012
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