Delhi High Court
Hdfc Ergo Gen. Ins. Co. Ltd. vs Ms. Anita Kohli & Ors. on 10 February, 2015
Author: G.P. Mittal
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th February, 2015
+ MAC.APP.142/2015
HDFC ERGO GEN. INS. CO. LTD. ..... Appellant
Through: Mr. A.K. Soni, Adv.
versus
MS. ANITA KOHLI & ORS. ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
G. P. MITTAL, J. (ORAL)
CM.APPL.2382/2015 (Exemption)
Exemption allowed, subject to all just exceptions.
Application stands disposed of.
MAC.APP.142/2015 and CM APPL.2382/2015 (stay)
1. The instant appeal is directed against the judgment dated 30.10.2014
passed by the Motor Accident Claims Tribunal-2, New Delhi (the
Claims Tribunal) whereby compensation of Rs.15,000/- was awarded
in favour of Respondent no.1 (the Claimant) for having suffered
injuries in a motor vehicular accident which occurred on 03.12.2013 at
9:15 p.m. while Respondent no.1 was riding on a motorcycle bearing
registration no.DL-9SAJ-3625 which was being driven by one Satish
Kumar, who also lost his life in that very accident.
2. On appreciation of evidence, it was found that Respondent no.1 was
admitted in Safdarjung Hospital where her MLC was prepared. She
was discharged on the same day and the injuries suffered were
reported to be simple.
3. Respondent no.1 claimed to be working with Joe Nails and earning
Rs.15,000/- per month. The Claims Tribunal awarded a compensation
of Rs.2,000/- towards purchase of medicines and treatment, Rs.7,000/-
on account of loss of income and further compensation of Rs.6,000/-
towards pain and suffering, trauma, etc. making lump sum
compensation of Rs.15,000/-.
4. The award is challenged only on the ground that the
Appellant/Insurance Company ought to have been exonerated of its
liability as the driver of the offending tempo bearing registration
no.DL-1LS-3323 possessed a driving licence only to drive LMV(Non
Transport). However, he was found to be driving a commercial
vehicle.
5. The Claims Tribunal considered this fact and relying on a judgment of
this Court in Sanjay v. Suresh Chand & Ors., FAO 445/2000, decided
on 03.08.2012 held that even in the case of conscious and willful
breach of the terms and conditions of the insurance policy, the insurer
will only be entitled to recovery rights. The Claims Tribunal quoted
from Sanjay v. Suresh Chand & Ors. as under:-
"The issue of satisfying the third party liability even in
case of breach of the terms of insurance policy is settled
by three Judge Bench report in Sohan Lal Passi v. P.
Sesh Reddy, (1996) 5 SCC 21. As per Section 149(2) of
the Motor Vehicles Act (the Act), an insurer is entitled to
defend the action on the grounds as mentioned under
Section 149(2)(a)(i)(ii) of the Act. Thus, the onus is on
the insurer to prove that there is breach of the condition
of the policy. It is well settled that the breach must be
conscious and willful. Even if a conscious breach on the
part of the insured is established, still the insurer has a
statutory liability to pay the compensation to the third
party and will simply have the right to recover the same
from the insured/tortfeasor either in the same
proceedings or by independent proceedings as the case
may be, as ordered by the Claims Tribunal or the Court.
The question of statutory liability to pay the
compensation was discussed in detail by a two Judge
Bench of the Supreme Court in Skandia Insurance
Company Limited v. Kokilaben Chandravadan, (1987) 2
SCC 654 where it was held that exclusion clause in the
contract of Insurance must be read down being in
conflict with the main statutory provision enacted for
protection of victim of accidents. It was laid down that
the victim would be entitled to recover the compensation
from the insurer irrespective of the breach of the
condition of policy. The three Judge Bench of the
Supreme Court in Sohan Lal Passi analyzed the
corresponding provisions under the Motor Vehicles Act,
1939 and the Motor Vehicles Act, 1988 and approved the
decision in Skandia. In New India Assurance Co.,
Shimla v. Kamla and Ors., (2001) 4 SCC 342, the
Supreme Court referred to the decision of the two Judge
Bench in Skandia, the three Judge Bench decision in
Sohan Lal Passi and held that the insurer who has been
made liable to pay the compensation to third parties on
account of issuance of certificate of insurance, shall be
entitled to recover the same if there was any breach of
the policy condition on account of the vehicle being
driven without a valid driving licence.
20. This Court in MAC APP. No.329/2010 Oriental
Insurance Company Limited v. Rakesh Kumar and
Others and other Appeals decided by a common
judgment dated 29.02.2012, noticed some divergence of
opinion in National Insurance Company Limited v.
Kusum Rai & Ors., (2006) 4 SCC 250, National
Insurance Company Limited v. Vidhyadhar
Mahariwala & Ors., (2008) 12 SCC 701; Ishwar
Chandra & Ors. v. The Oriental Insurance Company
Limited & Ors.,(2007) 10 SCC 650 and Premkumari &
Ors. v. Prahalad Dev & Ors., (2008) 3 SCC 193 and held
that in view of the three Judge Bench decision in Sohan
Lal Passi (supra) and Swaran Singh, the liability of the
Insurance Company visàvis the third party is statutory. If
the Insurance Company successfully proves the
conscious breach of the terms of the policy, then it would
be entitled to recovery rights against the owner or driver,
as the case may be."
6. I am in agreement with the view taken by the Claims Tribunal. On
proof of breach of terms and conditions of the insurance policy, the
Appellant was only entitled to recovery rights which have been
granted.
7. The appeal therefore, is not maintainable the same is dismissed in
limine.
8. Consequently, CM APPL.2383/2015 is also dismissed.
9. Statutory amount, if any, shall be refunded to the Appellant Insurance
Company.
(G.P. MITTAL)
JUDGE
FEBRUARY 10, 2015
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