Delhi High Court
Flow Well Plast. Chem. Pvt. Ld. vs The New India Assurance Company ... on 30 October, 2013
Author: Suresh Kait
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 30th October, 2013
+ MAC.APP. 802/2011
FLOW WELL PLAST. CHEM. PVT. LD. ..... Appellant
Represented by: Mr.Arvind Pandey, Advocate.
Versus
THE NEW INDIA ASSURANCE COMPANY LTD. & ORS.
..... Respondents
Represented by: Mr.Kanwal Chaudhary,
Advocate for Respondent No.1.
Mr.S.N. Parashar, Advocate for
Respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
MAC.APP. 802/2011
1. Vide the instant appeal, the appellant is assailing the order of the
learned Tribunal dated 07.06.2011, whereby, while awarding compensation,
the respondent No.1/Insurance Company was exonerated from the liability;
and the appellant and respondent No.3/driver of the offending vehicle were
held liable to pay the compensation amount.
2. After hearing learned counsel for the parties, it is established that the
accident had taken place on 22.02.2007. R1W2 from the Licensing
Authority has proved that the driving licence of respondent No.3, i.e., driver
of the offending vehicle had already been cancelled on 22.02.2007 (wrongly
recorded by the learned Tribunal as 09.02.2007). The said licence was
cancelled at the request received from the Traffic Police due to involvement
of respondent No.3 in previous fatal accident case registered vide FIR
No.16/06 under Sections 279/304-A IPC, Police Station Timarpur. It is
further emerged that the concerned MLO issued the show-cause notice to the
respondent No.3/driver, but neither he appeared nor filed any reply thereto.
Accordingly, his driving licence was cancelled on 22.02.2007 at 2.51.11
PM, proved as Ex.R2W1/8.
3. However, the learned Tribunal, inadvertently, noticing the driving
licence was cancelled on 09.02.2007 has opined that on the date of the
accident, the respondent No.3/driver was not having any valid driving
licence. Accordingly, the Insurance Company was exonerated from paying
any compensation and the appellant and respondent No.3/driver of the
offending were held liable to pay the compensation.
4. It is held in case of Lal Chand Vs. Oriental Insurance Co. Ltd., 2006
ACJ 2161 that in case of having fake or invalid driving licence, if the
insured of the offending vehicle has taken all due care and caution while
appointing the driver, then he cannot be held liable to pay the compensation.
5. In the present case, the driving licence was valid on the date of the
accident, i.e., 22.02.2007 as it was cancelled at 2.51.11 PM on that date itself
and the accident occurred at 4.30PM, i.e., within a gap of two hours.
Therefore, it can be safely inferred that the appellant/owner of the offending
vehicle was not aware of the cancellation of the driving licence and he was
under the impression that the respondent No.3/driver of the offending
vehicle was having the valid driving licence.
6. In the case in hand, carelessness on account of appellant/owner of the
offending vehicle while appointing the respondent No.3/driver was not
proved by the respondent No.1/Insurance Company. Therefore, in view of
the dictum of the Apex Court in the case of National Insurance Co. Ltd. Vs.
Swarn Singh, 2004 ACJ 1, there is no wilful breach in the case in hand on
the part of the appellant.
7. As noted above, if the appellant/owner of the offending vehicle was
not aware of the cancellation of the driving licence, then he cannot be held
liable to pay the compensation.
8. In such eventuality, findings of the learned Tribunal regarding
cancellation of the driving licence on 09.02.2007 and that the accident dated
22.02.2007 took place much after the cancellation of the driving licence are
not sustainable.
9. At this stage, learned counsel appearing on behalf of the respondent
No.1/Insurance Company submits that the recovery rights may be granted
against the respondent No.3/driver of the offending vehicle.
10. Admitted fact is that the driving licence was cancelled in the absence
of the respondent No.3/driver and even no intimation was given to him
regarding the same till this accident occurred on 22.02.2007.
11. It is also established from the record that the MLO issued the show-
cause notice to the respondent No.3/driver to cancel the said driving licence,
but, he did not file any response thereto. Cancellation of the driving licence
was proved by R1W2 at 2.51.11 PM, however, it is nowhere established that
the same has been conveyed to the respondent No.3/driver of the offending
vehicle. Hence, he continued to ply the said vehicle under the impression
that he was holding the valid driving licence.
12. In view of the above discussion, I am not inclined to grant recovery
rights against the respondent No.3/driver of the offending vehicle.
13. Resultantly, I set aside the impugned order dated 07.06.2011 to the
extent that the appellant and the respondent No.3/driver were held liable by
the learned Tribunal for paying the compensation.
14. Consequently, the respondent No.1/Insurance Company, being the
insurer of the offending vehicle is held liable to pay the compensation.
15. Accordingly, the respondent No.1/Insurance Company is directed to
deposit the entire compensation amount along with upto date interest
accrued thereon with the Registrar General of this Court within four weeks
from today. On deposit, the same shall be released in favour of the
respondent No.2/claimant in terms of the order dated 07.06.2011 passed by
the learned Tribunal.
16. Pursuant to order dated 05.09.2011, 75% of the awarded amount with
upto date interest was deposited by the appellant with the Registrar General
of this Court and the same was kept in the form of FDR.
17. Therefore, the Registrar General of this Court is directed to release the
aforesaid amount with upto date interest accrued thereon along with the
statutory deposit of Rs. 25,000/- in favour of the appellant.
18. The present appeal stands disposed of in view of the above.
CM No.16484/2012 (for withdrawal of amount)
With the disposal of the appeal itself, the instant application has
become infructuous.
The same is dismissed accordingly.
SURESH KAIT, J.
OCTOBER 30, 2013
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