United India Insurance Co Ltd vs Arun Tours & Travels Pvt Ltd & Ors.
2015 Latest Caselaw 1608 Del

$-36
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Decided on: 24th February, 2015
+        MAC.APP. 168/2013
         UNITED INDIA INSURANCE CO LTD ..... Appellant
                       Through: Mr. S.N. Sinha, Adv.

                            versus

         ARUN TOURS & TRAVELS PVT LTD & ORS... Respondents
                      Through: Mr. Vijay Kumar, Adv. for R-3
                                & R-4.
         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

                            JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The appeal is directed against the judgment dated 22.12.2012

passed by the Motor Accident Claims Tribunal (the Claims

Tribunal) whereby a compensation of `4,76,667/- along with

interest @7.5 % per annum was awarded in favour of

Respondents no.3 and 4 (the Claimants) for the death of their

son Sohar Ali, a bachelor who suffered fatal injuries in a motor

vehicular accident which occurred on 18.10.2009.

2. The only ground of challenge raised by the Appellant Insurance

Company is that the Appellant having proved willful and

conscious breach of the terms and conditions of the insurance

policy on the part of the insured, it ought to have been granted

at least recovery rights. Referring to the testimonies of R2W1

and R2W2, the learned counsel urges that it was proved that the

driving licence held by driver Praveen Kumar was fake as

Driving Licence no.9137 as per R2W1 was issued in the name

of one Amardas and not in the name of Praveen Kumar

(Respondent no.2 herein).

3. The Claims Tribunal, however, negatived the contention on the

ground that the Insurance Company failed to prove that the

breach was willful, deliberate and conscious.

4. I have the Trial Court Record before me. The owner examined

himself as R2W1 and testified that Praveen Kumar (Respondent

no.2) approached him for the job of driver in the month of

September, 2009 and showed him his driving licence. He took

the driving licence which seemed to be genuine. The driving

test of the driver was taken by his supervisor and the driver was

found competent to drive vehicles. This part of the testimony of

the owner was not challenged in cross-examination. Driver

(Praveen Kumar) also appeared as his own witness and

supported the version of the owner.

5. In view of this, it cannot be said that there was conscious and

willful breach of the terms and conditions of the insurance

policy as the insured had done whatever he could do to avoid

breach of the terms and conditions of the insurance policy.

Unfortunately, this part of the testimony of the owner was not

referred to and dealt with by the Claims Tribunal in the

impugned judgment.

6. The learned counsel for the Appellant has referred to the reports

of the Supreme Court in National Insurance Company Limited

v. Swaran Singh & Ors., (2004) 3 SCC 297; National Insurance

Company Limited v. Laxmi Narain Dhut, (2007) 3 SCC 700;

New India Assurance Co. Ltd. v. Sanjay Kumar and Ors., ILR

2007(II) Delhi 733; New India Assurance Co., v. Kamla and

Ors., (2001) 4 SCC 342 and M/s. Oriental Insurance Company

Limited v. Rakesh Kumar, 2012 ACJ 1268.

7. None of the judgments cited laid down as a proposition of law

that if the driving licence of the driver is fake, the insurer will

be entitled to recovery rights from the insured. Rather It has

been held by the Supreme Court in United India Insurance

Company Ltd. v. Lehru & Ors., (2003) 3 SCC 338 which has

been followed in the subsequent judgments of the Supreme

Court that breach on the part of the insured must be willful and

conscious to entitle the insurance company to recover the

compensation paid from the insured.

8. In view of this, the Claims Tribunal rightly declined recovery

rights to the Appellant.

9. The appeal therefore, has to fail; the same is accordingly

dismissed.

10. The compensation awarded to the Claimants shall be released in

favour of Respondents no.3 and 4 (the Claimants) in terms of

the orders passed by the Claims Tribunal.

11. Learned counsel for the Claimants states that the Claimants are

residents of Assam and it is inconvenient for them to collect the

amount of compensation from Delhi. The Claimants shall be at

liberty to move an application for transfer of the amount to the

account of the Claimants in the Bank wherever they reside.

12. Statutory amount, if any, shall be refunded to the Appellant

Insurance Company.

13. Pending applications also stand disposed of.

(G.P. MITTAL) JUDGE FEBRUARY 24, 2015 vk