Icici Lombard General Insurance ... vs Pitambar Yadav & Ors
2015 Latest Caselaw 2560 Del

$~4
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 25th March, 2015
+        MAC.APP. 379/2010
         ICICI LOMBARD GENERAL INSURANCE CO LTD..... Appellant
                           Through:     Ms. Suman Bagga, Adv.


                           versus


         PITAMBAR YADAV & ORS                              ..... Respondents
                           Through:     Nemo.
         CORAM:
         HON'BLE MR. JUSTICE G.P.MITTAL

G. P. MITTAL, J. (ORAL)

1. The appeal is directed against the judgment dated 26.02.2010 passed

by the Motor Accident Claims Tribunal (the Claims Tribunal)

whereby compensation of `4,22,400/- was awarded in favour of

Respondents no.1 and 2 for the death of Anil Yadav, who suffered

fatal injuries in a motor vehicular accident which occurred on

15.07.2007.

2. The only submission made by the learned counsel for the Appellant is

that the Appellant, who was insurer of the vehicle involved in the

accident has led evidence to prove that there was breach of the terms

and conditions of the insurance policy and therefore, the amount of

compensation which has already been paid, must be ordered to be

recovered from the insured.

3. The learned counsel for the Appellant relies on the order of this Court

dated 04.03.2013 and the report dated 18.04.2012. It is urged that the

report clearly establishes that the driving licence in question i.e.

driving licence No.56/3/2002 was issued in the name of one Raj

Kumar son of Teja Ram, resident of Jhumri Tilaiya, District Koderma

and not in the name of Anil Yadav, who was driving the vehicle at the

time of the accident.

4. It is not the case of the Appellant that this driving licence was

produced by the insured. Admittedly, no notice was served upon the

insured to produce the driving licence of the driver.

5. It is well settled that it is not each and every breach of the terms and

conditions of the insurance policy which will entitle the insurer to

recover the compensation paid from the insured. The insurer must

prove that the breach on the part of the insured is conscious and

willful. Unless the insured was put to notice to produce the driving

licence, it cannot be said that the initial onus placed on the insurance

company was discharged.

6. Had any notice been issued, the insured might have come forward

with some other driving licence or could have stated the circumstances

under which the vehicle was entrusted to the driver.

7. In view of this, it cannot be said that the Appellant Insurance

Company has proved that there was willful and conscious breach of

the terms and conditions of the insurance policy.

8. The Appeal therefore, has to fail; the same is accordingly dismissed.

9. The statutory amount, if any, deposited shall be refunded to the

Appellant Insurance Company.

10. Pending applications, if any, also stand disposed of.

(G.P. MITTAL) JUDGE MARCH 25, 2015 vk