Oriental Insurance Company Ltd. vs Kanwarjit Singh & Ors.
2012 Latest Caselaw 6903 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 3rd December, 2012
+        MAC.APP. 610/2012

         ORIENTAL INSURANCE COMPANY LTD.             ..... Appellant
                      Through: Mr. Abhishek Kumar, Adv. with
                               Mr. Punit Vinay, Adv.

                     versus


         KANWARJIT SINGH & ORS.                       ..... Respondents
                      Through: Nemo.

         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                                 JUDGMENT

G. P. MITTAL, J. (ORAL)

CM APPL.9980/2012 (Exemption) Exemption allowed, subject to all just exceptions.

The Application is allowed.

MAC.APP. 610/2012

1. The Appellant Oriental Insurance Company Limited impugns a judgment dated 27.02.2012 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby a compensation of `63,316/- was awarded in favour of the First Respondent for having suffered injuries in a motor vehicle accident which occurred on 21.05.2003.

2. The only ground of challenge is that the Appellant Insurance Company proved the breach of the terms and conditions of the policy and was,

therefore, entitled to recovery rights.

3. The Claims Tribunal dealt with the issue of liability in Paras 22 and 23 of the impugned judgment which are extracted hereunder:-

"22 The insurance company has raised the defence that it is not liable to make the payment of the award amount as it is claimed that the DL of the offending driver was found fake. The above fact has been stated by R3W3 Shri Suender Dutt Khanduri, Junior Assistant, RTO, Dehradun. However, the onus to prove the fact that there is any deliberate or willful default of policy conditions by the owner, is not discharged by the insurance company. Merely, the fact that the driver was not holding valid or effective license, is not sufficient to impart recovery rights to the insurance company as it is also to be shown that the vehicle had been handed over by the owner without having due care and caution and in abrogation of his duty and in violation of the policy contract. Reliance is placed on the judgment case in case, titled, Ram Babu Tiwari Versus United India Insurance Co. Ltd., 2008 ACJ 2654, in which the Hon'ble Court held as under :

"The owner of the vehicle in terms of Section 5 of the Act, has a responsibility to see that no vehicle is driven by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability."

23 It be observed that R-4,the owner of the vehicle has specifically stated that he is transporter. He has hired the driver, R-1, Ram Vachan on reference of his friend and thereafter, had seen him plying the vehicle. He was satisfied by his skills in order to ensure that the driver was having the license. He had seen the original license of the driver and has also kept a copy of the same. In view of the circumstances above, it is apparent that he has performed all obligation possible expected from a prudent owner employing the driver. No willful or deliberate default in such

circumstances, can be attributed to him and accordingly, the plea of the insurance company for recovery right, is rejected."

4. The owner of the vehicle (Kulvinder Singh Respondent No.4) filed his Affidavit Ex.R4W1/A and entered the witness box as R4W1. He testified that while employing the driver Ram Vachan he saw the driving licence possessed by him and issued by Licensing Authority, Dehradun. He obtained its photocopy Ex.PW-1/F from the driver. The licence appeared to be genuine. He had a talk with the driver's previous employee about the genuineness of the driving licence and tested driver's driving skills. Nothing substantial could be brought in his cross-examination to discard his testimony.

5. In the circumstances, the Claims Tribunal rightly held that the Insurance Company failed to establish any conscious and willful breach of the terms and conditions of the policy.

6. The Appellant Insurance Company was not entitled to recovery rights.

7. The Appeal is without any merit; the same is accordingly dismissed.

8. The statutory deposit of `25,000/- be refunded to the Appellant Insurance Company.

(G.P. MITTAL) JUDGE DECEMBER 03, 2012 vk