Delhi High Court
Oriental Insurance Co Ltd. vs Ouseph Joseph & Ors. on 7 February, 2014
Author: Suresh Kait
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 7th February, 2014
+ MAC.APP. 186/2011
ORIENTAL INSURANCE CO LTD. ..... Appellant
Represented by: Mr.Pradeep Gaur, Advocate.
Versus
OUSEPH JOSEPH & ORS. ..... Respondents
Represented by: Mr.Vipin Nandwani, Advocate for
Respondent No.1.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
MAC.APP. 186/2011
1. The present appeal is preferred against the impugned award dated
29.11.2010, whereby the learned Tribunal has granted compensation for a
sum of Rs.1,80,804/- with interest at the rate of 7.5% per annum from the
date of filing of the claim petition till realization of the amount.
2. The present appeal is filed only on the ground that the accident in
question had taken place on 25.09.2007 and the respondent No.2/driver of
the offending vehicle was not holding valid driving licence on that date.
3. Learned counsel appearing on behalf of the appellant submitted that
the appellant/Insurance Company served the notice Ex.RW1/2 under Order
XII Rule 8 CPC upon the respondent Nos. 2 and 3, i.e., driver and owner of
the offending vehicle respectively to produce the driving licence, however,
both of them have failed to produce the same.
4. In support of his contentions, learned counsel for the
appellant/Insurance Company relied upon the chargesheet, wherein driver of
the offending vehicle was charged under Sections 3/181 of the Motor
Vehicles Act, 1988 (for short 'M.V. Act').
5. Despite the above noted fact, the learned Tribunal has not relied upon
the chargesheet and opined that the appellant/Insurance Company failed to
prove that there was a wilful breach on the part of the driver of the offending
vehicle.
6. As per the record, respondent Nos. 2 and 3 did not appear before the
learned Tribunal, therefore, they were proceeded ex parte. In the present
appeal also, both the aforesaid respondents have been served by way of
publication.
7. On perusal of the impugned award, it is revealed that in Para 15 of the
award dated 29.11.2010, the learned Tribunal has recorded that mere
invocation of provisions of Section 3 MV Act in the chargesheet are not a
sufficient proof that the owner/insurer knowingly allowed the vehicle to be
plied by a person not holding valid driving licence. There was no
investigation, probe or even inquiry to suggest that the offending vehicle
was handed over to respondent No.2/driver by respondent No.3 negligently
and that driver was using his vehicle without any driving licence. The
provisions of Section 5 of MV Act are required to be interpreted strictly as
only by such interpretation, the effect of present legislation can be realized.
Accordingly, the appellant/Insurance Company could not be permitted a let
go by doing a half-hearted and incomplete work of investigation.
8. Keeping in view the above facts, the learned Tribunal has opined that
the appellant/Insurance Company cannot be allowed to completely disown
the liability.
9. It is an admitted fact that there is no driving licence on record either
produced by respondent No. 2 or by respondent No.3. In a case of fake
licence or invalid licence, being the owner of the offending vehicle, if it is
proved that he had taken due care and caution while appointing the driver of
the offending vehicle, then in that eventuality, the liability is upon the
Insurance Company, but if due care has not been taken and there is no
licence at all on record as in the present case, then the learned Tribunal
ought to have granted recovery rights in favour of the Insurance Company.
10. Admittedly, in the present case, there is no driving licence on record.
The respondent Nos. 2 and 3, i.e., driver and owner of the offending vehicle
were proceeded ex parte before the learned Tribunal and could be served by
way of publication in this appeal. In the present facts and circumstances, I
am of the considered opinion that the appellant/Insurance Company deserves
to get the recovery rights against aforesaid respondent Nos. 2 and 3.
11. In view of the above discussion, the instant appeal is allowed.
Consequently, the appellant/Insurance Company is at liberty to recover the
compensation amount from respondent Nos. 2 and 3, i.e., driver and owner
of the offending vehicle jointly and severally.
12. Accordingly, the Registry of this Court is directed to release the
statutory amount in favour of the appellant/Insurance Company and balance
compensation amount in favour of the respondent No.1/claimants with upto
date interest accrued thereon in terms of the order dated 29.11.2010 passed
by the learned Tribunal.
CM. No.4432/2011 (for stay)
With the disposal of the appeal itself, this application has become
infructuous. The same is accordingly dismissed.
SURESH KAIT, J.
FEBRUARY 07, 2014
Sb/jg
