National Insurance Co. Ltd. Q vs Pramod Kumar Sharma & Ors.
2013 Latest Caselaw 4016 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                   Judgment delivered on:9th September, 2013

+                               MAC.APP. 673/2006


       NATIONAL INSURANCE CO. LTD.                ..... Appellant
                    Through: Ms. Shantha Devi Raman, Advocate.

                         Versus

       PRAMOD KUMAR SHARMA & ORS.                ..... Respondents
               Through: Mr. Saurabh Kansal, Advocate for
                        Respondent Nos. 3 and 4.


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1. The present appeal is directed against the impugned order dated 17.04.2006 passed by the learned Tribunal.

2. It is pointed out that service upon respondent No. 1 was dispensed with vide order dated 17.07.2007 and respondent Nos. 2 to 4 were proceeded ex parte.

3. Vide order dated 14.05.2013, this Court issued the court notices against the respondents through their counsels.

4. Pursuant thereto respondent Nos. 3 and 4 appeared on 23.07.2013 and on their request, the Secretary, Delhi High Court Legal Services Committee

was directed to provide them a counsel. Accordingly, Mr. Saurabh Kansal, learned counsel appointed as Amicus Curiae appears on behalf of the respondent Nos. 3 and 4.

5. Learned counsel for the appellant/Insurance Company has argued that the respondent No.2/owner of the offending vehicle has breached the terms and conditions of the insurance policy by appointing and allowing respondent No.1/driver of the offending vehicle, who did not have endorsement on the driving licence to drive tractor trolley. She submitted that the learned Tribunal has failed to consider that mere looking at the driving licence would show that the driving licence of respondent No. 1 does not bear the endorsement, therefore, it is clearly proved that respondent No.2/owner of the offending vehicle had not seen the driving licence and was negligent in appointing respondent No.1/driver of the offending vehicle.

6. Learned counsel for the appellant/Insurance Company further submitted that as respondent No.2/owner of the offending vehicle has committed breach of terms and conditions of the insurance policy, therefore, the Insurance Company should have been exonerated from any liability, being not responsible for any payment. Alternatively, she argued that the appellant/Insurance Company may be granted recovery rights against respondent No.2 as the learned Tribunal has not granted the same.

7. As pointed out by the learned Amicus Curiae, service against respondent No. 1 has been dispensed with vide order dated 17.07.2007 by this Court, therefore, the sole issue before this Court is whether the appellant/Insurance Company is entitled to get the recovery rights against respondent No.2/owner of the offending vehicle.

8. Undisputedly, R3W1, Shri Rajender Kumar, Clerk Licensing Authority, Bullandshehar has deposed before the learned Tribunal that the licence bearing No.1350/BSR/1990 was issued in the name Sh. Pramod Kumar, i.e., respondent No.1 on 11.05.1990 for Heavy Goods Vehicle (HGV) and Heavy Passenger Vehicle [HPV (V)] and was valid upto 26.06.2005, whereas the accident took place on 20.03.2003.

9. I note, the aforesaid witness has also deposed that there was no endorsement on the said driving licence to drive tractor as separate endorsement is required to be issued to drive the tractor.

10. Learned counsel for the appellant/Insurance Company has submitted that respondent No.2 had even failed to pay any premium towards the insurance of the tractor.

11. Learned Amicus Curiae has pointed out that the impugned order dated 17.04.2006 is also silent on this issue as neither any argument had been advanced by learned counsel for the appellant/Insurance Company nor any witness was examined to this effect, therefore, at this belated stage, this Court has no material whether the premium towards the insurance of the tractor was paid by the respondent No.2/owner of the offending vehicle or not.

12. I further note, R2W2 Sh. Mahesh Chand/respondent No.2 had admitted that he was owner of the offending vehicle on the date of the accident, i.e., 20.03.2003. He further stated that on the date of the accident, the tractor was being driven by Pramod Kumar/respondent No.1, who was working with him for the last one and a half years. He also stated that at the

time of appointment, he had checked the particulars of his driving licence and that the police had seized the same driving licence in the criminal case.

13. R3W1 Sh. Rajender Kumar, clerk of the concerned Licensing Authority has also proved that the driving licence in question was issued on 11.05.1990 for HGV and HPV (V) and was valid upto 26.06.2005, whereas the accident occurred on 20.03.2003.

14. The law is well settled in the case of National Insurance Company Ltd. Vs. Swaran Singh & Ors., 109(2004) DLT 304 (SC), if the owner of the offending vehicle has taken due care at the time of appointing the driver, then he is not liable to pay any compensation in case the vehicle is duly insured.

15. In the present case, the driving licence was issued for HGV and HPV (V) and the respondent No.2/owner of the offending vehicle had checked the said driving licence before appointing respondent No.1 as driver. Moreover, the said driver was working for the last one and a half years with him, which proves that he was having the driving skills to drive the tractor.

16. In view of the above, I do not find any discrepancy in the impugned award dated 17.04.2006 passed by the learned Tribunal, therefore, the instant appeal is dismissed.

17. Before parting with the judgment, it is pertinent to mention here that on 24.03.2009, learned counsel for the appellant/Insurance Company has submitted before this Court that in pursuance of the order dated 07.08.2006 passed by this Court, the Insurance Company has deposited the entire awarded amount less Rs.25,000/- with the learned Tribunal on 08.09.2006.

The statutory amount of Rs.25,000/- deposited by the appellant/Insurance Company along with the instant appeal, therefore, also forms part of the award amount. Accordingly, this Court by the above noted order directed the Registry to remit the statutory amount of Rs.25,000/- deposited by the appellant along with the appeal to the learned Tribunal to be adjusted against the award amount.

18. Consequently, the learned Tribunal is directed to release the compensation amount with upto date interest in favour of the respondent Nos. 3 and 4/claimants, if not released already.

19. Needless to state, the learned Amicus Curiae appearing on behalf of the respondent Nos. 3 and 4 shall get the fee as per the Fee Schedule of the Delhi High Court Legal Services Committee, New Delhi.

20. In view of the above, the instant appeal is disposed of.

SURESH KAIT, J.

SEPTEMBER 09, 2013 sb