Suresh Aggarwal vs M/S New India Assurance Co. Ltd
2012 Latest Caselaw 3187 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Reserved on: 22nd March, 2012
                                        Pronounced on: 11th May, 2012

+       MAC.APP. 724/2005

        SURESH AGGARWAL                        ..... Appellant
                    Through:           Mr. R.N. Dubey, Advocate

                    versus

        M/S NEW INDIA ASSURANCE CO. LTD. ..... Respondent
                      Through: Mr.D.K. Sharma, Advocate

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

                             JUDGMENT

G. P. MITTAL, J.

1. The Appellant Suresh Aggarwal, owner of Maruti car No.DL-

8CA-6184 impugns the judgment dated 04.02.2004 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby while awarding a compensation of `2,98,432/- (including an interim compensation of `50,000/-) it held that there was breach of the terms of the policy committed by the Appellant (the Insured) thus, while making the Respondent M/s. New India Assurance Company Limited liable to pay the compensation granted recovery rights against the Appellant.

2. It is admitted case of the parties that Suraj Pal Singh (Respondent No.1 before the Claims Tribunal) was holding a

learner's licence to drive a motor car. As per PW-4 Khurshid Khan's (an eye witness) testimony on 16.06.1998 at about 10:00 A.M. he was present in the Campus of the Transport Authority, Mr. Kishan Sethi, MVI (Motor Vehicle Inspector) was taking trial of the persons who were holding a learner's licence for issuance of the driving licence. He and one Kishan were sitting in his (PW-4's) Car No.DL-6C-3261 whereas the injured Khalil was standing near his car. Car No.DL-8CA-6184 driven by Suraj Pal Singh came from the right side. The driver could not control the car and hit his car. Khalil (the injured) suffered injuries which proved fatal.

3. Although, Suraj Pal Singh disputed the factum of driving of the offending vehicle at the time of the accident, yet, the Petitioners before the Claims Tribunal successfully proved that the accident was caused on account of rash and negligent driving of the car No. DL-8CA-6184 by Suraj Pal Singh. It is important to note that said Suraj Pal Singh was apprehended at the spot and was prosecuted for an offence punishable under Section 279/304-A IPC in a case registered by FIR No.374/1998 in Police Station Nand Nagri. That finding is not being challenged by the Appellant or even said Suraj Pal Singh.

4. The Claims Tribunal opined that the said Suraj Pal Singh possessed only a learner's licence. There was no indication that any plate with the letter 'L' was placed on the front and on the rear side of the vehicle and that Suraj Pal Singh was

accompanied by any person at the time of driving the vehicle. Thus, the Claims Tribunal held that the owner i.e. the Appellant committed breach of the terms of policy and consequently granted recovery rights to the Respondent Insurance Company.

5. The Respondent Insurance Company with regard to the driving licence averred as under:-

"That the Respondent No.1 on 16.6.99 at about 10 AM at the time of accident while driving vehicle no.DL-8CA- 6184 was holding a learner's Driving Licence and was not accompanied by any competent driver with him. Thus, it is evidence that the Respondent No.1 was not holding a valid and effective driving licence, therefore, the answering Respondent has no liability at all."

6. It is well settled that the onus is on the Insurance Company to prove that there is breach of the terms of the policy to succeed in its defence under Section 149(2)(a). The Insurance Company must show that the breach was conscious and willful. (United India Insurance Company Ltd. v. Lehru & Ors., (2003) 3 SCC

338).

7. In the instant case, the owner i.e. the Appellant Suresh Aggarwal (Respondent No.2 before the Claims Tribunal) entered the witness box as R2W1 and testified as under:-

"On the date of accident "I had handed over the said car to Sh.Praveen Agrawal my elder brother. My brother Praveen Agarwal had given the said car the Driver Suraj Pal to drive the said car in order to give the test for

issuing a regular license. The R-1 was not having the regular license. But he was having the learner license. XXXX By Sh. S.K. Tripathi Adv. counsel for the petitioners.

Nil opportunity given.

XXXX By D.K. Sharma Adv. counsel for R-3. Nil opportunity given."

8. Thus, it may be noticed that the Appellant did not handover the car to Suraj Pal Singh. Even if, it is assumed that the car was handed over by the Appellant to Suraj Pal Singh knowing fully well that he possessed only a learner's licence, no question was asked to him nor any suggestion was given that, Suraj Pal Singh was not accompanied by any person or for that matter, there was no indication of 'L' on the front and on the rear of the car. It is well settled that a licence to drive a vehicle includes a learner's licence. (National Insurance Company Limited v. Swaran Singh & Ors., (2004) 3 SCC 297)

9. Thus, the Respondent Insurance Company failed to establish that there was breach of the terms of policy by the Appellant. The Claims Tribunal fell into error in granting recovery rights against him.

10. The impugned order, therefore, cannot be sustained; the same is accordingly dismissed.

11. The statutory amount of `25,000/- be refunded to the Appellant.

12. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE MAY 11, 2012 vk