National Insurance Co Ltd. vs Rinku Sharma & Anr
2012 Latest Caselaw 388 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Decided on: 19th January, 2012
+       MAC.APP. 323/2010

        NATIONAL INSURANCE CO LTD..... Appellant
                     Through: Ms. Shantha Devi Raman, Adv.

                    versus


        RINKU SHARMA & ANR                        ..... Respondent
                    Through:            Mr. K.N. Bhargavan, Adv. with
                                        Mr. Aashish George, Adv. for
                                        R-1.

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

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant National Insurance Company Limited impugns the award dated 06.03.2010 whereby a compensation of Rs. 65,349/- was awarded in favour of the Respondent No.1 (Rinku Sharma). Rinku Sharma suffered injuries in the motor accident involving a Tractor bearing number HR-51N-6077, which took place on 13.01.02004.

2. The Appellant's grievance is that it was established on record that the driving licence possessed by the second Respondent was not valid on the date of the accident. Since the owner himself was the driver of the tractor, he shall be deemed to have

committed willful breach of the terms of the policy. The Insurance Company had no liability to pay the awarded compensation. It is urged that even the recovery rights were not granted to the Appellant.

3. While dealing with this aspect, the Claims Tribunal observed that the Appellant Insurance Company had failed to establish that the driving licence possessed by Respondent No.2 was not valid at the time of the accident and thus it fastened the liability on the Insurance Company to pay the amount being the insurer of the offending vehicle.

4. It is urged by the learned counsel for the Appellant that the owner during inquiry before the Tribunal entered the witness box as R2W2 wherein he deposed that his licence was taken into possession by the police on the date of the accident. The recovery memo of the driving licence was placed on record before the Tribunal along with the photocopy of the licence. Respondent No.2 did not say that he possesses any other licence or that the police have seized another licence from him.

5. A perusal of the recovery memo dated 14.01.2004 shows that "the driving licence number 6833-8-98651 of Mahender Pal, S/o Harbans Singh R/o Village Dadsia Distt. Faridabad (Haryana) and on which M/Cycle and M/Car only was written the aforesaid licence and it is valid upto 11.11.2003 and issued from the Faridabad Authority and the same has been taken in

custody by the police as proof." The photocopy of the driving licence also shows that the driving licence was valid upto 11.11.2003. The accident took place on 13.01.2004. There is no evidence that this driving licence was got renewed immediately after the accident. Even if, it is assumed that the driving licence was got renewed, the date of the validity will not extend to the date of the accident, as the driving licence had expired two months prior to the date of the accident. In the circumstances, the Insurance Company had established breach of the terms of the policy and was not liable to indemnify the insured. Thus, the Insurance Company had no liability to pay the compensation. (Ishwar Chandra & Ors. v. The Oriental Insurance Company Limited & Ors., (2007) 10 SCC 650; National Insurance Company Limited v. Vidhyadhar Mahariwala & Ors., AIR 2009 SC 208; and Malla Prakasarao v. Malla Janaki & Ors., (2004) 3 SCC 343).

6. By order dated 26.05.2010 it was directed that "the amount shall not be disbursed to the Claimant without further orders of this Court." It was clarified that there was a clerical error in the previous order dated 17.05.2010 whereby it was mentioned that "the amount shall be disbursed to the Claimant without further orders of this Court". It is submitted that in spite of the clarificatory order dated 26.05.2010, the amount was released by the UCO Bank, Delhi High Court Branch, New Delhi.

7. In the circumstances, it is directed that the Appellant shall have

a right of recovery against Respondent No.2, the owner and driver of the offending vehicle number HR-51N-6077.

8. The Appeal is allowed in above terms. No costs.

9. Pending application also stands disposed of.

10. The circumstances under which the amount was released in favour of Respondent No.1 by UCO Bank, Delhi High Court Branch, New Delhi shall be inquired into by the Registrar General of this Court, responsibility of the officer / official concerned shall be fixed and a report shall be submitted to this Court within six weeks.

11. Put up in Chamber for report on 2nd March, 2012.

(G.P. MITTAL) JUDGE

JANUARY 19, 2012 vk