Delhi High Court
New India Assurance Company Ltd vs Harjit Singh & Ors on 26 April, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th April, 2012
+ MAC.APP. 717/2010
NEW INDIA ASSURANCE COMPANY LTD..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
HARJIT SINGH & ORS ..... Respondent
Through: Mr. Manish Mannie, Advocate
for R-1.
Mr. Sameer Kumar Advocate
R-2 & R-3.
+ MAC.APP. 114/2011
VIPIN KUMAR & ANR ..... Appellant
Through Mr. Sameer Kumar Advocate
versus
HARJIT SINGH & ANR ..... Respondent
Through Mr. Manish Mannie, Advocate
for R-1.
Ms. Neerja Sachdeva, Advocate
for R-2.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. These two Appeals arise out of a common judgment dated
27.07.2010 passed by the Motor Accident Claims Tribunal (the
Claims Tribunal) whereby while awarding a compensation of `
6,21,000/-, the Claims Tribunal granted recovery rights to the
Insurer (the New India Assurance Company Limited) against
the Respondents No.2 and 3 (the driver and owner of the
offending vehicle).
2. MAC APP.717/2010 has been filed by the New India Assurance
Company Limited on the ground that the driving licence of the
driver Vipin Kumar was not valid on the date of the accident(It
being already expired). He was, therefore, without a licence for
all practical purposes. The Insurance Company urges the
counsel was entitled to be completely absolved of the liability.
3. MAC APP.114/2011 has been filed by Vipin Kumar and Manoj
Kumar (the driver and owner of the offending vehicle) on the
ground that mere absence or invalidity of the driving licence
was not sufficient to absolve the Insurance Company for its
liability to indemnify the Insured. The Insurer was under
obligation to prove that there was a willful breach of the terms
of policy. It is averred that the driver had obtained a Certificate
of Two Days Refresher Training Course Ex.CW-1/A (proved by
way of additional evidence during these proceedings) which
was valid for a period of three months w.e.f. 12.06.2007 and
thus, the driver shall be deemed to have possessed a valid
driving licence on the date of the accident which occurred on
22.08.2007.
4. CW-1 M.K. Aggarwal, Joint Secretary, Automobile Association
of Upper India proved certificate issued by the Association as
Ex.CW-1/A. He clarified that on the basis of the Certificate, the
Applicant could apply for issuance of a driving licence for
HMV within a period of three months from the date of issuance
of the certificate. He stated that the Refresher Course was
mandatory for renewal of a driving licence for HMV. The
Certificate Ex.CW-1/A was not a substitute for the driving
licence.
5. The driving licence issued to the driver Vipin Kumar was valid
for a period of 01.06.2004 to 31.05.2007 and then for the period
of 25.08.2007 to 24.08.2010. It is established that the licence
was not renewed within a period of 30 days from the date of its
expiry and it will not relate back to the initial date of issuance of
the driving licence.
6. The issue is no longer res integra that even in a case where the
insurance company establishes a conscious breach of the terms
of the insurance policy, the liability of the insurer to satisfy the
decree vis-a-vis third party is statutory.
7. There is an authoritative pronouncement of the Supreme Court
in National Insurance Company Limited v. Swaran Singh, 2004
(3) SCC 297 paras 73, 104 and 105 are extracted hereunder :-
"73. The liability of the insurer is a statutory one. The
liability of the insurer to satisfy the decree passed in
favour of a third party is also statutory.
x x x x x x x
x x x x x x x
104. It is, therefore, evident from the discussions made
hereinbefore that the liability of the insurance company
to satisfy the decree at the first instance and to recover
the awarded amount from the owner or driver thereof has
been holding the field for a long time.
105. Apart from the reasons stated hereinbefore, the
doctrine of stare decisis persuades us not to deviate from
the said principle."
8. Following Swaran Singh, (Supra) this Court in National
Insurance Company Limited v. Sanjay Kumar, ILR, 2007 (2),
Delhi, 733 held that even when breach of the terms and
conditions of policy of insurance in terms of Section 149(2)(a)
of the Motor Vehicle Act, 1988 is proved, the insurance
company would still be required to pay the sum awarded to the
claimant, but would be entitled to the recovery rights against the
insured.
9. In MAC APP 329/2010, Oriental Insurance Company Limited
Vs. Rakesh Kumar and Others, decided on 3rd February, 2012,
this Court noticed National Insurance Company Limited v.
Swaran Singh & Ors., (2004) 3 SCC 297, Sohan Lal Passi v. P.
Sesh Reddy, (1996) 5 SCC 21, New India Assurance Co.,
Shimla v. Kamla and Ors., (2001) 4 SCC 342 and United India
Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338
and held that even when there is a willful breach of the terms of
policy under Section 149(2)(a) of the Act, the Insurance
Company is under obligation to indemnify the liability towards
the third party and recover the same from the owner.
10. It was established on record that the Appellant's driving licence
was not valid on the date of the accident. The certificate issued
by the AAUI which was valid for three months, as stated by
RW1 was not a substitute for licence. The case of expired
licence is covered by the Supreme Court report in New India
Assurance Company Ltd. v. Suresh Chandra Aggarwal, (2009)
15 SCC 761, where, driving licence of the driver had expired on
25.10.1991 i.e. four months prior to the date of accident which
occurred on 29.02.1992. The driving licence was renewed
w.e.f. 23.03.1992. Since the renewal of the licence was not
within 30 days of the expiry, it was held that the driver did not
possess any effective driving licence and there was breach of
the terms of the policy.
11. In the circumstances, the Claims Tribunal was justified in
making the Insurance Company liable to pay the compensation
with a right to recover the same from the owner and the driver.
12. The Appeals filed by the Insurance Company (MAC
APP.717/2010) and filed by the driver and owner (MAC
APP.114/2011) are devoid of any merit; the same are
accordingly dismissed.
13. By order dated 12.08.2011 while granting stay of the recovery
against the Appellants (the driver and owner) in MAC
APP.114/2011, 25% of the award amount was ordered to be
deposited with the Registrar General of this Court. If the said
amount has been deposited, the same shall be payable to the
Respondent Insurance Company.
14. The Insurance Company shall be entitled to enforce the
recovery rights in respect of the award amount paid to the
Claimants.
(G.P. MITTAL)
JUDGE
APRIL 26, 2012
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