M/S The New India Assurance Co. ... vs Shri Mustakeen & Others
2012 Latest Caselaw 1642 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Decided on: 7th March, 2012

+       MAC.APP. 44/2009

        M/S THE NEW INDIA ASSURANCE CO. LTD. ..... Appellant
                      Through: Mr.D.D.Singh and
                               Mr. Navdeep Singh, Advocates.

                    versus


        SHRI MUSTAKEEN & OTHERS            ..... Respondents
                     Through: Mr. Sameer Chandara,
                              Advocate for R-3 and R-4.

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

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant impugns the judgment dated 16.09.2008 whereby a compensation of Rs.2,48,000/- was awarded for the death of minor child Santosh Kumar. The amount has already been paid by the Appellant/Insurance Company.

2. The only ground of challenge is that the driver of the offending vehicle namely, Mohd. Mustkim, the Respondent No.1 herein did not possess a driving licence and, therefore, there was breach of the terms of the Insurance r/w 149 (2)(viii) (ii) entitled the Appellant to avoid the insurance policy. It is submitted that the Appellant ought to have

been granted recovery rights against the owner and the driver of the vehicle.

3. The learned counsel for the Appelant places reliance on the charge-sheet filed against the Respondent No.1 on the basis of the FIR No. 428/99, P.S. Sangam Vihar wherein the Respondent No. 1 was challaned for not possessing a driving licence at the time of the accident.

4. I have perused the report u/s 173 of Cr.P.C. It is mentioned in the charge-sheet that the Respondent No. 1 was challaned u/S. 3 read with Section 112 of the Motor Vehicles Act for non production of the driving licence.

5. This was not enough to discharge the onus placed on the Appellant/Insurance Company to prove that there was conscious breach of the terms of the policy by the Insurer. The Appellant could have asked the owner of the insured vehicle to produce the driving licence of the driver. Since the owner and the driver were not asked to produce the driving licence it cannot be said that the driver did not possess a driving lincence. Mere challan for an offence u/s 3/112 of the Act was not sufficient to draw a conclusion that the driver did not possess a licence and the owner intentionally committed breach of the terms and policy. (Oriental Insurance Company Ltd. v. Sonia, 158(2009), DLT) .The Insurance Company could not avoid the contract of the insurance in view of the judgment of the Supreme Court titled National Insurance Company Limited v. Swaran Singh &

Ors., (2004) 3 SCC 297.

6. The appeal is without any merit, the same is accordingly dismissed.

(G.P. MITTAL) JUDGE MARCH 07, 2012/mr