Rubina Qureshi vs Tata Aig General Insurance Co. ...
2012 Latest Caselaw 5615 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Reserved on: 29th August, 2012
                                           Pronounced on: 18th September, 2012
+       MAC APP. 550/2010

        RUBINA QURESHI                              ..... Appellant
                Through:                Mr. J.K. Tyagi with Mr. Ankur Gupta,
                                        Advocates

                                      Versus

        TATA AIG GENERAL INSURANCE CO. LTD. & ORS
                                          ..... Respondents
                     Through: Ms. Anjali Bansal, Advocate for the
                              Respondent No.1 Insurance Company.

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

                                JUDGMENT

G. P. MITTAL, J.

1. This Appeal is directed against a judgment dated 27.05.2010 passed by the Motor Accident Claims Tribunal (the Claims Tribunal) whereby while awarding a compensation of `50,655/- in favour of the Respondent No.3, recovery rights were granted in favour of the First Respondent, to recover the compensation paid from Respondent No.2 and the Appellant(the driver and the owner of the offending maruti car No.DL- 3C-Z-0346).

2. It is urged by the learned counsel for the Appellant that it was not proved that the Respondent No.2 was the Appellant's employee; thus, the Appellant could not have been held vicariously liable for the act of the Second Respondent. It is stated that the Second Respondent was a friend

of the Appellant's husband. Since the Second Respondent was not Appellant's driver, she had no opportunity to verify the licence and cannot be said to have committed willful breach of the terms of the policy. While dealing with the question of the liability, the Claims Tribunal held as under:

"11. R3/Insurance Company has disputed its liability on the ground that R1 was not having a valid and effective driving license as on the date of the accident. Two witnesses have been examined in that regard. R3W1/Mohd. Azhar Bashir, Manager of the Insurance Company has proved the insurance policy Ex.R3W1/1 in respect of vehicle no.DL-3C-Z-0346, being the offending vehicle and has proved that the same was in the name of R2/Rubeena. Certified copy of the charge- sheet also placed on record and as per the charge-sheet, R1 was also prosecuted for the offences punishable u/s 3/181 of M.V. Act for not possessing a valid and effective driving license. During the pendency of the proceedings, copy of the driving license of R1 was placed on record by R2, the owner of the offending vehicle, which was got verified by the Insurance Company from RTO, Meerut and as per the report, license was found to be fake. R3W2 R.A. Tiwari, Junior Clerk, RTO Office, Meerut has proved that driving license no.S-4559/MRT/98 was issued in the name of Sanjay Kumar, s/o Satbir Singh and was not issued in the name of R1/Samim, s/o Shamimuddin. R2 was served in the proceedings, had filed WS and has also placed on record the copy of the driving license of R1, who chose to abstain from the proceedings and there is no evidence on record to controvert the evidence adduced on behalf of Insurance Company that R1 was not having a valid and effective driving license as on the date of the accident. R3/Insurance Company, being the insurer of the offending vehicle shall discharge the liability first within a month and then, shall be entitled to recover the amount from R2/Rubeena, the owner of the offending vehicle."

3. A perusal of the Trial Court record reveals that a written statement was filed by the First Respondent (Respondent No.3 before the Claims Tribunal) on 22.01.2004. A plea was taken by the Appellant that the Second Respondent(herein) did not possess a valid driving licence to drive the offending vehicle and he was, therefore, challaned by the police for an offence punishable under Section 3 read with Section 181 of the Motor Vehicles Act, 1988(the Act). The Appellant filed a written statement contesting the Claim Petition on 06.01.2005, that is, much after the filing of the written statement by the First Respondent. She was, however, completely silent as to the Second Respondent's prosecution for driving the vehicle without a driving licence. A notice dated 04.05.2008 Ex.RA was issued to the Appellant to produce the driving licence held by the driver. The postal receipt was proved as Ex.RB and AD card as Ex.RC. By notice Ex.RA, the Appellant was informed by the First Respondent that the D/L No.S-4559 produced by the driver and alleged to have been issued by Licensing Authority, Meerut had been found to be fake. The Appellant was directed to produce any valid and effective driving licence held by the driver on the date of the accident in the Court on 22.05.2008. The Appellant failed to produce any other driving licence. The First Respondent, as stated above, proved the notice Ex.RA, copy of the policy Ex.R3W1/1, permitting the First Respondent to avoid policy if the vehicle is driven by a person not holding a valid and effective driving licence. The First Respondent further examined R.A. Tiwari, Clerk, from RTO, Meerut(R3W2) who testified that driving licence No. S-4559/MRT/98 was issued in the name of one Sanjay Kumar s/o Satbir Singh, r/o Village Gaisu Pur, Daurala, Meerut on 08.02.1999

and not in the name of the Second Respondent. He further deposed that no driving licence was issued on 22.10.1998.

4. Nothing more could have been done by the First Respondent to prove the willful breach of the terms of the policy on Appellant's part. It was for the Appellant to explain the circumstances under which the vehicle was handed over to the Second Respondent. This was not done during inquiry before the Claims Tribunal. No satisfactory explanation has been given even during the Appeal.

5. The learned counsel for the Appellant places reliance on National Insurance Company Ltd. v. Bhagwati Devi & Ors., 2007 ACJ 2124; Satinder Sharma v. The Oriental Insurance Co. Ltd. & Ors., MANU/DE/0191/2012, Oriental Insurance Company Ltd. v. Ram Raj Singh & Ors., MANU/DE/3844/2011 and The Oriental Insurance Co. Ltd. & Ors. v. Subhash Chander & Ors., MANU/DE/6778/2011. I have already dealt with the facts of this case. Since willful breach of the terms of the policy has been established by the First Respondent in this case, the authorities cited do not come to the rescue of the Appellant.

6. For the above reasons, the Appeal is devoid of any merit; it is accordingly dismissed.

7. Since the amount of compensation has not been deposited by the Appellant, the statutory amount shall be released in favour of the Third Respondent (Claimant before the Claims Tribunal). The Third Respondent shall be at liberty to take execution for recovery of the balance amount.

8. Pending Applications stand disposed of.

(G.P. MITTAL) JUDGE SEPTEMBER 18, 2012 pst