Delhi High Court
Mala Jairath vs Oriental Insurance Co Ltd & Ors on 21 March, 2012
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 21st March, 2012
+ MAC.APP. 415/2010
MALA JAIRATH ..... Appellant
Through: Mr. S.P. Singh Chaudhari, Adv.
Versus
ORIENTAL INSURANCE CO LTD & ORS ..... Respondent
Through: Mr. R.N. Sharma, Advocate for
R-1
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
1. The sole question for determination in the Appeal is whether the
Respondent i.e. the Oriental Insurance Company has been able
to prove the willful breach of the terms of the policy so as to
entitle it to the recovery rights as granted by the Claims
Tribunal by the impugned order.
2. A compensation of Rs.25,000/- was awarded to the LRs of the
deceased Issac Joseph who died during the pendency of the
Claim Petition. It is alleged that the said Issac Joseph sustained
injuries in an accident which occurred on 10.11.1997. The
offending car bearing No.DL-6C-2735 was driven by its owner,
the Appellant herein. While dealing with the issue of liability,
the Claims Tribunal held as under:-
"The insurance company have brought on record of
Transport Authority through its record clerk as R2W1
wherein he deposed before this court that the license of
the driver of the offending vehicle was issued only on
23.09.1999. The Insurance company also produced its
own officer R2W1 in order to prove the terms and
conditions of the policy and breach thereof. The date of
accident is 10.11.1997. Therefore, the insurance
company have duly proved the fact that the respondent
No.1 was driving the vehicle without driving license at
the time of accident. In view of the aforesaid testimonies
of R2W1 and R3W1, the insurance company is entitled to
recovery rights but only after disbursement of the award
amount to the petitioners in terms of judgment of Hon'ble
Supreme Court of India in national Insurance Company
Ltd. Vs. Swaran Singh, AIR 2004 SC1531".
3. It is urged by the counsel for the Appellant that it was
established on record that a driving license Ex.R3W1/D was
issued to the Appellant on 05.08.1985, which was renewed on
23.09.1999. The Respondent Insurance Company did not
produce any evidence that the Appellant did not possess a valid
driving licence on the date of the accident. I have gone through
the testimony of R3W1 Anil Nagpal who proved the
verification report Ex.PW2/E. He testified that this licence was
issued on 05.08.1985 and renewed on 23.09.1999. He deposed
that the report did not reveal the status of the D/L on the date of
accident i.e. 10.11.1997.
4. The Insurance Company produced Birender Singh Rawat R2W1
who deposed that the license no.03091999157739 was issued on
23.09.1999. He further deposed that the expiry date of the said
license was 22.09.2009 for LMN (NT).
5. The first Respondent/Insurance Company did not produce any
evidence that the Appellant did not possess any valid license on
the date of the accident. The date of the expiry of the initial
license issued on 05.08.1985 was also not given. As per Section
10 of Motor Vehicles Act 1939, a driving license issued or
renewed after the commencement of Motor Vehicles
Amendment Act 1978, was to be valid for a period of 5 years. It
was incumbent on Respondent No.1 to establish willful and
conscious breach of the terms of policy and in the absence of
any specific evidence that the licence was not valid on the date
of the accident i.e.10.11.1997, it is difficult to say that the
Insurance Company has proved willful breach of the terms of
the policy.
6. Thus, the Appeal must succeed. The same is accordingly
allowed.
7. No costs.
(G.P. MITTAL)
JUDGE
MARCH 21, 2012
neelam
