Pradeep Nangia vs Mamta & Ors
2014 Latest Caselaw 5744 Del

F$~A-34
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 12th November, 2014

+     MAC.APP. 91/2012 and CM No.20345/2013 (stay)

      PRADEEP NANGIA                              ..... Appellant
                  Through               Mr.K.L.Nandwani, Advocate.

                           versus

      MAMTA & ORS                                   ..... Respondents
                           Through      Ms.Suman Bagga and Mr.Pankaj Gupta,
                                        Advocates for R-4.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. By the present appeal is filed by the appellant seeking to impugn the award dated 02.09.2011.

2. The brief facts which led to the filing of the claim petition are that on 30.04.2010 Ajay Jat along with his minor son Master Jatin was going on a two- wheeler scooter. When they reached A Block bus stop Jagatpuri, Delhi, a truck said to be driven in a very fast speed came from behind and dashed against the scooter. Due to the impact Ajay Jat with his minor son fell on the road and received grievous injuries. Master Jatin expired on 01.05.2010. Hence, two claim petitions were filed by the Ajay Jat for the injuries to himself and by him along with his wife for fatal injuries suffered by his son Jatin.

3. The appeal is filed by the appellant who is the owner of the offending

vehicle. The appeal is confined to the claim petition being Suit No.347/2010 which pertains to the death of Master Jatin.

4. The Tribunal in the present case passed an award of Rs.3,75,000/-. On the question of liability, the Tribunal held that the driving license of the driver, namely, Rajesh i.e. respondent No.3 had expired on 14.02.2010. The date of the accident was 30.04.2010. The date of renewal was 01.05.2010 and hence the driver did not have a valid driving license. On the issue of permit also the Tribunal relied upon the evidence of R3W2 Amit Kumar Srivastava, Clerk RTO Office, Ghaziabad stating that the permit was not for Delhi. The Tribunal directed respondent No.4 Insurance Company to pay the award amount subject to recovery rights against the owner of the offending vehicle, namely, the appellant.

5. By the present appeal learned counsel appearing for the appellant has impugned the directions in the award granting recovery rights to respondent No.4 Insurance Company. He submits that the accident took place on 30.04.2010 and the license was renewed on 01.05.2010. He submits that the action of the driver and the appellant was bona fide as the driver was a qualified driver having a license to drive since January 2000. He submits that there is no wilful default and in terms of Section 149 (2) (a) (ii) it cannot be said that the appellant was not duly licensed and hence the liability would be on respondent No.4/Insurance Company. He relies upon the judgment of the Full Bench of the Kerala High court in the case of Oriental Insurance Company Ltd. vs. Paulose, 2004 ACJ 457, the judgment of this High Court in the case of New India Insurance Co. Ltd. vs. Mohd. Iqlam 2009 (IV) AD (Delhi) 647 and National Insurance Company vs. Smt. Abha Singh & Ors.,1998 (2) TAC 581

(Pat.) to contend that in similar facts and circumstances the high courts have held that the appellant would have no liability.

6. Learned counsel appearing for respondent Insurance Company, however, submits that the reliance of the learned counsel for the appellant on the above judgments of different high courts is misplaced. She relies upon the judgment of the Supreme Court in the case of Ram Babu Tiwari vs. United India Insurance Co. Ltd. & Ors., (2008) 8 SCC 165 and National Insurance Co. Ltd. vs. Vidhyadhar Mahariwala & Ors., (2008) 12 SCC 701.

7. On the issue of permit, learned counsel for the appellants relies upon the evidence of R3W1, Sh. S.P. Singh, Clerk RTO Office Gautam Budh Nagar, Noida especially his cross-examination to contend that the vehicle had an all India permit.

8. Coming to the issue of lapse of the license, we may first look at the provisions of the Motor Vehicles Act, 1988. Section 14 provides the tenure of the respective driving licenses. Section 15 provides that the renewal shall be from the date of the application if the application is made not more than 30 days after the date of its expiry. Similarly Section 149 (2) (a) (ii) reads as follows:-

"(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; "

9. Reference may be had to the judgment of the Supreme Court in the case of H.L.Trehan vs. Union of India (1989) 1 SCC 764:AIR 1989 SC 568, where the Supreme Court defined the word "duly" as follows:

"11. ... The High Court has placed reliance upon the ordinary dictionary meaning of the word 'duly' which, according to Concise Oxford Dictionary, means 'rightly, properly, fitly' and according to Stroud's Judicial Dictionary, Fourth Edition, the word 'duly' means 'done in due course and according to law'. In our opinion, the word 'duly' is very significant and excludes any arbitrary exercise of power..."

10. A perusal of the above provision would show that the contention of the learned counsel for the appellant that his case is covered under Section 149 (2)

(a) (ii) is without merit. When a license has expired and an application for renewal is made 30 days after its expiry, the license is renewed with effect from the date of its renewal. Hence, holder of such a license cannot be said to be falling under the definition of a person who is duly licensed if the accident takes place 30 days after the expiry but before the renewal of the licence. Hence Section 149 (2) (a) (ii) would not be applicable in a case where the license is renewed from a date 30 days subsequent to the date of an accident.

11. National Insurance Co. Ltd. vs. Vidhyadhar Mahariwala &

Ors.(supra) was a case where the accident took place on 11.06.2004. Driving license that expired on 14.12.2003 and was renewed on 16.05.2005. The Supreme Court relying upon the judgment of the Supreme Court in the case of Ishwar Chandra & Ors. vs. Oriental Insurance Co. Ltd., (2007) 10 SCC 650 upheld the contention of the Insurance Company.

12. Ishwar Chandra & Ors. vs. Oriental Insurance Co. Ltd.(supra) was a case in which the recovery rights were given to the Insurance Company. It was submitted before the Supreme Court by the owner of the offending vehicle that the licence held by the driver had expired and the same was later on renewed and the Insurance Company was liable to reimburse the amount of compensation payable by the appellants to the claimants. The Supreme Court relying upon Section 15(1) of the Motor Vehicles Act, 1988 held that the driver did not have a valid license on the date of the accident. In these circumstances, the appeal filed by the owner was dismissed.

13. Ram Babu Tiwari vs. United India Insurance Co. Ltd. & Ors.(supra) was a case in which the accident took place on 27.01.1996. The driver did not have a valid driving license for the period 11.02.1993 to 06.02.1996. As the driver did not a license for this period in question, the appeal was dismissed. That was a case where the appeal was filed by the owner of the offending vehicle and the High Court had dismissed the appeal opining that the Insurance Company was not liable to indemnify the insured.

14. In the light of the above legal position, reliance of the learned counsel for the appellant on the judgments of this High Court, Kerala High Court and Patna High Court is misplaced.

15. In view of the legal and factual position in this case, it has to be held that

on the date of the accident the appellant did not have a valid driving license. Accordingly, there is no reason to disagree with the award in the present matter.

16. On the issue of permit, reference may be had to the evidence of Amit Kumar Srivastava, Clerk of RTO Office Ghaziabad R3W2. He has in his evidence said that the Delhi permit was valid only from 31.07.2008 to 30.07.2009 and was not valid for 30.04.2010 on the date of the accident. In his cross-examination, he accepts that the permit was issued regarding the offending vehicle for which the permit holder had given a sum of Rs.4,200/- for Delhi which includes the amount of penalty and fee. He states that part A of the permit is valid from 31.07.2008 to 30.07.2013. On part 2, he states that it was without authorisation on 30.04.2010. Hence, there is no evidence to show that the appellant had a valid permit on the date of the accident.

17. In the facts and circumstances of this case, there are no grounds to interfere with the award of the Tribunal. The present appeal is dismissed.

18. In case the appellant has complied with the award, the statutory amount, if any, may be released to the appellant.

JAYANT NATH, J NOVEMBER 12, 2014 rb