Bajaj Allianz General Insurance ... vs Shri Gurmail Singh @ Gurmer @ ...
2014 Latest Caselaw 2467 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  FAO No.330/2012 and C.M. No.13321/2012 (stay)

%                                                      15th May, 2014

BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. ..... Appellant
                  Through: Ms. Neerja Sachdeva, Advocate.


                          Versus

SHRI GURMAIL SINGH @ GURMER @ GURNAL SINGH AND ANR.
                                                   ..... Respondents
                  Through: Ms. Pratima N. Chauhan, Advocate for
                           respondent No.1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This first appeal is filed under Section 30 of the Employee's

Compensation Act, 1923 (hereinafter referred to as 'the Act') by the insurance

company impugning the judgment of the Commissioner dated 14.5.2012 by

which compensation has been awarded to the respondent no.1 herein.

2.           The appellant/insurance company argues before this Court the

aspect that the insurance company could not be liable in the absence of the

respondent no.1/driver not having filed and proved his driving licence, and

which defence was specifically taken by the insurance company in para 6 of the
FAO 330/2012                                              Page 1 of 3
 reply on merits of its written statement. The appellant/insurance company also

accordingly filed the affidavit by way of evidence of its Assistant Manager

(Legal) Sh. Ashutosh Singh reiterating the aspects as stated in para 6 of the

written statement, in para 4 of the affidavit by way of evidence.

3.           I have seen the record of the Commissioner.            It could not be

disputed on behalf of the respondent no.1 that no driving licence of the

respondent no.1 was filed before the Commissioner. Once no driving licence is

filed, it shows that the respondent no.1 was driving the vehicle without having a

valid driving licence. Once the respondent no.1 did not have a valid driving

licence and the employer allowed the respondent no.1 to drive the vehicle

without a valid driving licence, the appellant/insurance company cannot be held

liable because as per the term of the insurance policy, the driver must have a

valid driving licence. A reference to the judgment of the Commissioner shows

that the Commissioner has not at all discussed this aspect though this defence

was specifically raised in the written statement and proved through the affidavit

by way of evidence filed on behalf of the appellant/insurance company. On

account of this fact, there is grave perversity in the judgment of the

Commissioner and therefore a substantial question of law arises under Section

30 of the Act.


FAO 330/2012                                                  Page 2 of 3
 4.           In view of the above, the appeal is allowed. Impugned judgment of

the Commissioner dated 14.5.2012 is set aside as against the appellant/insurance

company.       The claim petition filed by the respondent no.1 before the

Commissioner will stand dismissed as against the appellant.           Since the

respondent no.1 has received 50% of the amount of compensation, the appellant

will be at liberty to recover this amount from the respondent no.1. The balance

50% amount which is lying with the Commissioner be returned back to the

appellant alongwith accrued interest thereon within four weeks of the production

of copy of the present judgment before the Commissioner.      Parties are left to

bear their own costs.



MAY 15, 2014                                      VALMIKI J. MEHTA, J.

Ne