National Insurance Co. Ltd vs Vidya Rani & Ors.
2012 Latest Caselaw 571 Del

    *       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        MAC.APP . 17 of 2004
+                             Date of Decision: 27th January, 2012



# NATIONAL INSURANCE CO. LTD            .....Appellant
!                  Through: Mr. Mohan Babu, Advocate

                                Versus

$ VIDYA RANI & ORS.                                   ....Respondents
                                                       Through: None

        CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN


                              JUDGMENT

P.K BHASIN,J:

This is an appeal under section 173 of the Motor Vehicles Act, 1988 ("the Act of 1988" in short) against the award dated 23-09- 2003 given by the Motor Accidents Claims Tribunal("MACT" in short) whereby the compensation found to be payable to respondent no.1 herein, was directed to be paid to her by the appellant herein being the insurer of the vehicle involved in the accident, which was a red line bus(hereinafter referred to as "the insured vehicle") owned by respondent no.3 herein and driven by respondent no.2 herein at the time of the accident and who has been found guilty of causing the death of one Pawan Narang due to rash and negligent driving of the bus. The appellant-insurer felt aggrieved by the impugned judgment

because of no right having given to it by the MACT to recover the compensation from the insured i.e. respondent no.3 and hence this appeal came to be filed.

2. A claim petition under section 166 of the Act of 1988 for getting compensation was filed by the respondent no.1 herein, being the legal heir of deceased Pawan Narang who lost his life in a motor accident because of rash and negligent of bus by respondent no.2 herein by hitting the bus against two wheeler on which the deceased was sitting on the back seat and that scooter was being driven by his brother.

3. The appellant-insurer's main objection in its written statement was "that it could not be held liable to pay any amount of compensation to the claimant until it was proved that respondent no.2 (driver) was having a valid and effective driving license at the time of the alleged accident or he was not otherwise disqualified to hold the same.

4. The learned MACT while holding the driver of the red line bus guilty of causing the accident and the death of the deceased Pawan Narang by his rash and negligent driving awarded compensation of Rs.2,16,000/- along with interest @ 9% p.a. to the claimant, respondent no.1 herein vide its order dated 23-09-2003. Regarding the liability of the insurer, appellant herein, the MACT observed that the insurance company had failed to prove that the driver of the offending bus was having a fake driving license and so it was not entitled to

recover the compensation from the owner of the bus. Feeling aggrieved by the denial of the right to recover compensation awarded to respondent no.1 from the owner of offending bus the appellant filed the present petition.

5. The only argument advanced by the learned counsel for the appellant was that the learned MACT's finding that the driver of the insured vehicle did not possess a fake and forged license and so insurer company was liable to pay compensation to the respondent no.1 is not sustainable since as per the evidence adduced of the appellant's witness (RW3W2) there was no record in the office of the transport authority concerned to show that the driving license seized by the police from the driver during the investigation of the crime under Section 304-A IPC and which was in the name of respondent no.2 was issued to him by the transport authority.

6. After having considered the submissions made by the counsel of the appellant and respondent no.1 and going through the record I have come to the conclusion that even though the finding of the MACT that the driving licence, recovered from the driver of the offending bus by the police, was genuine cannot be sustained since the official from the Transport Authority concerned examined as RW-3W2 had deposed that that licence was not issued by the Transport Authority. However, there is no illegality in this final conclusion that the insurer was liable to the compensation to the legal heir of the deceased and there is also no illegality in the denial of the right to the appellant to recover the

compensation awarded to the legal heir of the deceased from the owner of the offending bus.

7. I have already noted the defence which was raised by the appellant in its written statement. It was not pleaded by it that the insured had committed breach of any term of the contact of insurance by handing over his bus to his driver knowingly that he was not possessing a valid driving licence. If there was no such pleading there was no occasion for adducing evidence to establish such defences by the insurer.

8. Therefore, there is no merit in this appeal of the insurer and the same is dismissed.

P.K. BHASIN, J January 27, 2012