Delhi High Court
Shriram General Insurance ... vs Inderjeet Singh & Ors on 11 November, 2014
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11th November, 2014
+ MAC.APP. 196/2014
SHRIRAM GENERAL INSURANCE COMPANY
LTD ..... Appellant
Represented by: Mr. Manish Kaushik, Adv. for
Mr. K.L. Nandwani, Adv.
versus
INDERJEET SINGH & ORS ..... Respondents
Represented by: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The present Appeal is directed against the award dated 31.07.2013,
whereby the appellant was directed to pay compensation for an amount of
Rs.57,508/- with interest @ 9% from the date of filing of the Claim Petition
till realization of the amount.
2. Brief facts of the case are that on 09.09.2009 respondent no. 1 /
injured was going on his motorcycle bearing no. DL-7SAA-5802 to DLF
Phase-IV, Gurgaon. At about 8.15 AM, when he reached at the red light of
MLA Flats, Gurgaon, Haryana, and was standing at the traffic signal, a
Truck (offending vehicle) bearing registration no. HR-55F-4746 came from
behind in a rash and negligent manner and hit on the left side of the
motorcycle of respondent no. 1, as a result of which, respondent no. 1 fell
down and sustained injuries. He was removed to Neel Kanth Hospital,
Gurgaon and vide FIR no. 160/2009, a case under Section 279/338 IPC was
registered at PS-DLF, Phase-I, Gurgaon, Haryana.
3. Respondent no. 1 / injured was 33 years of age at the time of accident
and was working as a driver with Sh. Arvind Verma, Adv. and was earning a
sum of Rs.10,000/- per month. The copy of MLC is Ex.PW1/A by which it
is proved that the injured suffered fracture left tibia. He remained three days
in Hospital, i.e., from 09.09.2009 to 11.09.2009.
4. Ld. Counsel appearing on behalf of the petitioner argued the only
ground that the driver of the offending vehicle was not holding valid and
effective driving licence on the date of the accident. Despite, the ld.
Tribunal has directed the appellant to pay compensation amount in favour of
respondent no. 1.
5. The Appellant / Insurance Company has examined Sh. Sunil
Banshiwal, Assistant Manager Legal as R3W1 and Sh. Bhoop Narayan
Singh, Sr. Clerk, Office of RTO, Agra, UP as R3W2. R3W1 adduced
evidence by way of affidavit Ex.R3W1/X.
6. In Para 2 of the affidavit Ex.R3W1/X, R3W1 has stated that the
petitioner is not liable to pay any amount of compensation to the claimant as
at the time of the alleged accident, the driver of the vehicle was not holding
valid and effective driving licence. R3W2 brought the Licence Record
Register from the period 23.06.2006 to 01.07.2006 in respect of licence no.
7443/AG/06 to 7813/AG/06 and as per the summoned record, the licence
no. 7484/AG/06 has been issued on 24.06.2006 in the name of Subruts Kul.
R3W2. Also produced the licence record register from 27.04.2006 to
04.05.2006 in respect of licence no. 4141/AG/06 to 4516/AG/06 and as per
the record no licence has been issued in the name of Sh. Irshad/respondent
no. 2 on 27.04.2006.
7. Ld. Counsel appearing on behalf of the appellant submits that in view
of the facts recorded above, respondent nos. 2 and 3 have failed to prove that
respondent no. 2, driver of the offending vehicle was holding valid and
effective driving licence on 09.09.2009, i.e., the date of accident.
8. The ld. Tribunal recorded in the award that notice under Order XII
Rule 8 CPC was issued only to R3/ Imraan, i.e., owner of the vehicle and by
the said notice he was called upon to produce only the original policy. The
appellant failed to prove that they had issued notice thereby calling upon
both respondent nos. 2 and 3 to produce the valid driving licence possessed
by respondent no. 2 at the time of accident. The appellant also failed to
explain as to why no notice was issued to respondent nos. 2 and 3 to produce
the valid driving licence possessed by respondent no. 2 at the time of the
accident. Even if ultimately, it turns out that the licence was fake, the
Insurance Company is still liable unless the appellant proves that owner /
insured was aware or had noticed that the driving licence was fake and still
permitted the respondent no. 2 to drive the vehicle.
9. The issue of invalid licence, no licence and fake licence has been dealt
by the Apex Court in the case of National Insurance Company v. Swaran
2004, ACJ 1 wherein it is held as under:
"106 (iii) The breach of policy condition e.g., disqualification of
driver or invalid driving licence of the driver, as contained in
sub-section (2)(a)(ii) of section 149, have to be proved to have
been committed by the insured for avoiding liability by the
insurer. Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant time, are
not in themselves defences available to the insurer against either
the insured or the third parties. To avoid its liability towards
insured, the insurer has to prove that the insured was guilty of
negligence and failed to exercise reasonable care in the matter of
fulfilling the condition of the policy regarding use of vehicles by
duly licensed driver or one who was not disqualified to drive at
the relevant time. (iv) The insurance companies are, however,
with a view to avoid their liability must not only establish the
available defence(s) raised in the said proceedings but must also
establish 'breach' on the part of the owner of the vehicle; the
burden of proof wherefor would be on them......".
10. In view of above, I find no discrepancy in the award
dated 31.07.2013 passed by the ld. Tribunal.
11. Accordingly, the present appeal is dismissed with no order as to costs.
12. Statutory amount be released in favour of the appellant.
SURESH KAIT, J
NOVEMBER 11, 2014
jg
