Vivek Kumar & Ors. vs Kamlesh & Ors.
2012 Latest Caselaw 7054 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 10th December, 2012
+        MAC.APP. 435/2012

         VIVEK KUMAR & ORS.                         ..... Appellants
                     Through:            Mr. D.K. Sharma, Adv.

                      versus


         KAMLESH & ORS.                             ..... Respondents
                     Through:            Mr. Sameer Nandwani, Adv. for R-3.

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

                                  JUDGMENT

G. P. MITTAL, J. (ORAL)

1. By virtue of this Appeal, the Appellant, who is the owner of the vehicle No.DL-1YA-8168 involved in the accident prays for setting aside of the impugned order dated 05.01.2012 to the extent, the recovery rights were granted against him.

2. I have before me the Trial Court record. The learned counsel for the Appellant has taken me through the written statement filed by Respondents No.1 and 2 (before the Claims Tribunal) and the Appellants herein. Para 3 of the written statement is extracted hereunder:-

"3. That in view of the preliminary objections the petition of the petitioners deserves dismissal out rightly as against the answering respondent no.1 and 2 with cost of the proceedings. However if this Hon'ble court comes to the conclusion that the accident was occurred with the vehicle of respondent no.2 in that case the

respondent no.1 is having a valid driving license bearing no.V- 13/4/04 Dated 14-03-02 issued from licensing authority Lalitpur (U.P.) and the Car No.DL 1Y A8168 was insured at the time of the alleged accident with M/s. Reliance General Insurance, same is already on police records and the same was valid. That since the vehicle of the respondent no.2 is a commercial vehicle therefore same has been duly approved vide permit no.TC1YA/8168/2009, valid upto 4 March 2012. However, the Respondent No.1 has already given one of his DL to the police at the time of his arrest as at the time of arrest respondent no.1 was not carrying the above mentioned DL, as same was lying at his house. And now same is annexed herewith."

3. Copy of the driving licence No.V-13/4/04 Dated 14-03-02 was placed on record of the Claims Tribunal. The licence clearly shows that the licence was issued to drive motorcycle and LMV (Private) on 14.03.2002. An endorsement to drive commercial vehicle was made w.e.f. 05.08.2006 to 04.08.2009. This accident took place on 21.06.2009. Thus, the licence possessed by the First Appellant covers the period of accident.

4. The Respondents examined one N.D. Patel to prove that the driving licence possessed by the First Appellant was not valid. The said licence was sought to be proved as Ex.R3W2/2. The number of that licence is DL-12584/JUL/08 dated 28.06.2008. The respondent Insurance Company has not given any explanation as to why the driving licence pleaded in the written statement and copy of which was placed on record of the Claims Tribunal was not got verified. The Respondent Insurance Company cannot complain of any willful breach of the terms and conditions of the policy. The Appeal, therefore, has to be allowed.

5. The impugned order so far as it grants recovery rights against the Appellants is set aside.

6. The Appeal is allowed in above terms.

7. The statutory deposit of `25,000/- shall be refunded to the Appellant.

8. Pending Applications also stand disposed of.

(G.P. MITTAL) JUDGE DECEMBER 10, 2012 vk