Delhi High Court
New India Assurance Co. Ltd. vs Mithlesh & Ors. on 1 May, 2012
Author: J.R. Midha
R-1,2,3&5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 01st May, 2012
+ MAC.APP. 2/2005
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
MITHLESH & ORS. ..... Respondents
Through : Mr. Samrat Nigam, Adv. for
R-5.
+ MAC.APP. 3/2005
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
RAKESH SUMAL & ORS. ..... Respondents
Through : Mr. Samrat Nigam, Adv. for
R-3.
+ MAC.APP. 10/2005
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
GAJENDER SINGH & ORS. ..... Respondents
Through : Mr. Samrat Nigam, Adv. for
R-3.
+ MAC.APP. 21/2005
NEW INDIA ASSURANCE CO. LTD. ..... Appellant
Through : Mr. Pankaj Seth, Adv.
versus
MAC.APP.Nos.2,3,10&21/2005 Page 1 of 5
SUMITRA DEVI & ORS. ..... Respondents
Through : Mr. Samrat Nigam, Adv. for
R-5.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the awards of the Claims
Tribunal on the limited ground that the appellant is entitled to
the recovery rights against the owner of the offending vehicle.
2. The accident dated 8th December, 1998 resulted in the
death of Ramesh Singh and Sanjay Kumar and grievous injuries
to Gajender Singh and Rakesh Sumal. All the aforesaid
persons were travelling in Maruti Car No.DL-2CJ-1738 which
was hit by truck No.DIG-9024. Four claim petitions were filed
before the Claims Tribunal against driver, owner and Insurance
Company of truck No.DIG-9024. The claim petition was
defended by the appellant on the ground that the driving
licence of the driver was fake.
3. The appellant examined its Assistant Officer, Ramanand
as RW-1 who deposed that the driving licence of the driver was
verified from the Investigator who found the same to be
forged. The report of the Investigator was proved as
Ex.RW1/F.
4. Ms. Harsh Kumari, owner of the offending vehicle
appeared in the witness box as RW-2 and deposed that she
employed Mujib-Ur-Rehman as driver of the offending vehicle.
She deposed that at the time of seeking the employment, the
driver had shown the driving licence - Ex.RW-1/E to her and
she had employed him after that.
5. The Claims Tribunal held that the appellant has to prove
not only that the driving licence was fake but also that the
owner of the offending vehicle was aware of the fact that the
driving licence of the driver was fake. The Claims Tribunal held
that the appellant has not led any evidence to prove that the
owner of the offending vehicle was aware of the driving licence
being fake and she entrusted the offending vehicle or
permitted him to be a driver knowing the driving licence to be
fake. The Claims Tribunal declined to grant the recovery rights
to the appellant.
6. The law on the subject of fake driving licence is well
settled by the judgment of three Judges Bench of the Supreme
Court in National Insurance Company Limited v. Swaran
Singh, (2004) 3 SCC 297 wherein the Court held as under:-
"SUMMARY OF FINDINGS :
106. The summary of our findings to the various issues
as raised in these petitions are as follows:
(i) ............
(ii) Insurer is entitled to raise a defence in a claim
petition filed under Section 163A or Section 166 of the
Motor Vehicles Act, 1988 inter alia in terms of Section
149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g.
disqualification of driver or invalid driving licence of
the driver, as contained in Subsection (2)(a)(ii) of
Section 149, have to be proved to have been
committed by the insured for avoiding liability by the
insurer. Mere absence, fake or invalid driving licence
or disqualification of the driver for driving at the
relevant time, are not in themselves defences
available to the insurer against either the insured or
the third parties. To avoid its liability towards insured,
the insurer has to prove that the insured was guilty of
negligence and failed to exercise reasonable care in
the matter of fulfilling the condition of the policy
regarding use of vehicles by duly licensed driver or
one who was not disqualified to drive at the relevant
time.
(iv) The insurance companies are, however, with a
view to avoid their liability must not only establish the
available defence(s) raised in the said proceedings but
must also establish 'breach' on the part of the owner
of the vehicle; the burden of proof where for would be
on them.
(v) The court cannot lay down any criteria as to how
said burden would be discharged, inasmuch as the
same would depend upon the facts and circumstance
of each case.
(vi) Even where the insurer is able to prove breach on
the part of the insured concerning the policy condition
regarding holding of a valid licence by the driver or his
qualification to drive during the relevant period, the
insurer would not be allowed to avoid its liability
towards insured unless the said breach or breaches on
the condition of driving licence is/are so fundamental
as are found to have contributed to the cause of the
accident. The Tribunals in interpreting the policy
conditions would apply "the rule of main purpose" and
the concept of "fundamental breach" to allow
defences available to the insured under Section 149(2)
of the Act.
(vii) The question as to whether the owner has taken
reasonable care to find out as to whether the driving
licence produced by the driver, (a fake one or
otherwise), does not fulfill the requirements of law or
not will have to be determined in each case."
7. The finding of the Claims Tribunal is squarely covered by
the aforesaid judgment of the Supreme Court. There is no
evidence to show that the insured was aware of the fact that
the driving licence of the driver was fake. On the other hand,
the owner has deposed on oath before the Claims Tribunal that
she was not aware that the driving licence of the driver was
fake.
8. There is no merit in the aforesaid appeals which are
hereby dismissed.
J.R. MIDHA, J
MAY 01, 2012
aj
