Oriental Insurance Co. Ltd. vs Gargi Singh & Ors
2015 Latest Caselaw 3649 Del

$-7

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Decided on: 06th May, 2015
+       MAC.APP. 136/2010

        ORIENTAL INSURANCE CO. LTD.
                                                         ..... Appellant
                             Through:   Mr.Pradeep Gaur, Advocate
                                        with Mr. Amit Gaur, Advocate

                    versus

        GARGI SINGH & ORS                           ..... Respondents
                      Through:          Mr. Navneet Goyal, Advocate
                                        for Respondent no.6


        CORAM:
        HON'BLE MR. JUSTICE G.P.MITTAL

                             JUDGMENT

G. P. MITTAL, J. (ORAL)

1. The Appellant has filed the appeal against the judgment dated

27.11.2009 challenging the quantum of compensation and its

liability. Compensation of Rs.18,96,000/- was awarded by the

Motor Accident Claims Tribunal(Claims Tribunal) in favour of

Respondents no.1 to 4 for the death of Veer Singh, who suffered

fatal injuries in a motor vehicular accident which occurred on

04.08.2000. The learned Single Judge of this Court by an order

dated 08.03.2010 issued notice to Respondents no.5 and 6 only

with regard to the liability.

2. An application for additional evidence was moved by the

Appellant which was allowed by this Court. In pursuance of the

application, the Appellant examined Pramod Kumar, Senior

Clerk Enforcement from the office of RTO Agra. He testified

that the driving licence Ex.AW1/A appearing at pages 113 and

115 of the Trial Court record was not genuine. He stated that

the licence at this number was issued in the name of Islam S/o

Mohd Khan, R/o Tajganj, Agra.

3. The learned counsel for the Appellant urges that a notice under

Order 12 Rule 8 CPC was issued to the insured to produce

licence of the driver. However, that was not done by the

insured. The Appellant also proved that the driving licence

Ex.AW1/A seized by the police was fake. Thus, the Appellant

successfully proved willful and conscious breach of the terms

and conditions of the insurance policy on the part of the insured.

Therefore, even if the Insurance Company was made liable to

pay the compensation, recovery rights ought to have been

granted.

4. On the other hand, the learned counsel for Respondent

no.6(insured) submits that the driver (Respondent no.5) had

produced a driving licence available at page 97 of the Trial

Court record. Respondent no.6 also conducted the driving test

and appointed driver Sharavan Singh(Respondent no.5) only

after he was satisfied about the driving skills of the driver. The

learned counsel urges that although the Insurance Company was

all along aware of the driving licence no.2825/Agra/93 available

on the record which the owner believed to be genuine, but it

never preferred to get the said licence verified.

5. Before dealing with the relevant law on the subject, it will be

apposite to refer and deal with the factual situation. The

Appellant did not take any specific defence in the written

statement that the driving licence no.S/6840/92A seized by the

police and available on the Trial Court record was fake. No

evidence was led to prove the said licence to be fake during

inquiry before the Claims Tribunal. Application for additional

evidence moved before this Court was allowed. The Appellant

examined AW-1, Pramod Kumar who deposed that the driving

licence Ex.AW1/A was fake as this licence was issued in the

name of Islam S/o Mohd Khan, R/o Tajganj, Agra. Thus, it is

evident that the licence Ex.AW1/A which was claimed to be

seized by the police was fake. A perusal of the Trial Court

record reveals that the driving licence no.2825/Agra/93 was

available before the Trial Court on 20.05.2009 (as is evident

from the order sheet of the Trial Court record). Once this

licence was on the record, it was Insurance Company's duty to

get it verified. During the pendency of the appeal, Respondent

no.6 filed his Affidavit Ex.R6W1/A in rebuttal to the

Appellant's evidence and testified that he had seen the driving

licence no.2825/Agra/93 dated 05.08.1993 issued from Agra

Transport Authority which seems to be genuine. He took the

driving test of the driver and found him to be a competent

driver.

6. Although, the Appellant failed to prove that the driving licence

no.2825/Agra/93 was fake, it is well settled that it is always not

possible for the insured/owner of the vehicle to get the licence

of the driver verified from the Transport Authority. In the case

of National Insurance Company Limited v. Swaran Singh &

Ors. (2004) 3 SCC 297, it was held that to avoid its liability

towards the insured, the insurer has to prove that the insured

was guilty of negligence and he failed to exercise reasonable

care in the matter of fulfilling the condition of the policy

regarding use of vehicles by a duly licenced driver or by one

who was not disqualified to drive at the relevant time. As stated

earlier, Respondent no.6 took driving test and also saw the

driving licence of Respondent no.5 which he believed to be

genuine. The said licence has not been proved to be fake by the

Insurance Company.

7. In the case of United India Insurance Company Ltd. v. Lehru &

Ors. (200) 3 SCC 338, it was held by the Supreme Court that

owner of a vehicle while hiring a driver is not expected to check

the records of the licencing officer to satisfy himself that the

driving licence is genuine. If the driver produces a driving

licence which on the face of it looks genuine, the owner cannot

said to be negligent. I would extract Para 20 of the report

hereunder:-

"20. When an owner is hiring a driver he will therefore have to check whether the driver was a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner should then take the test of the driver. If he find that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTO's, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be above of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had notice that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skiandia's Sohan Lal Passi's and Kamla's cases. We are in full agreement with the views expressed therein and see no reason to take a different view."

8. In view of above discussion, it cannot be said that the Appellant

has discharged the initial onus of proving that the insured was

guilty of negligence and failed to exercise reasonable care in the

matter of fulfilling the condition of the policy.

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

dismissed.

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

11. Statutory amount, if any, deposited shall be refunded to the

Appellant Insurance Company.

(G.P. MITTAL) JUDGE MAY 06, 2015 pst