Delhi High Court
Allauddin vs The Oriental Insurance Co Ltd & Ors on 12 February, 2016
Author: R. K. Gauba
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 12th February, 2016
+ MAC.APP. 568/2013
ALLAUDDIN ..... Appellant
Through: Mr. Siddhanth, Adv.
versus
THE ORIENTAL INSURANCE CO LTD & ORS
..... Respondents
Through: Mr. L. K. Tyagi, Adv. for R-1.
Mr. Navinder Singh Gussain,
Representative of DTC.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The appellant was impleaded as second party in the claim petition
under Sections 166 and 140 of Motor Vehicles Act 1988 (the MV Act)
by the third to sixth respondents on the allegations that he is the owner
of the truck bearing registration no.DL-1G-6433 which was driven by
the second respondent herein in a rash/negligent manner at 11:25 PM on
28.08.2005 for which reason there was a collision involving the said
truck with three wheeler scooter no. DL-1RC-6301, consequent to
which Surender Parshad Rai suffered injuries that caused his death. The
claim petition registered as petition no.150/2006 was inquired into, after
notices to the appellant, Ram Chander (the driver) and the first
respondent herein (insurer). The insurance company admitted the
insurance policy having been issued in respect of the truck for the
relevant period against third party risk though it took up the defences
that the insured (appellant) inspite of notice under Order 12 Rule-8 of
Code of Civil Procedure, 1908 (CPC) had failed to produce a valid
driving license of the driver (second respondent) or permit of the truck
for the relevant period. The appellant had joined the driver in the written
statement denying the involvement of the truck in the accident. At the
inquiry, however, he did not lead any evidence in defence.
2. The tribunal, by judgment dated 21.10.2008, awarded
compensation in the sum of `8,06,954/- in favour of the claimants and
upheld the contention of the insurance company about breach of the
policy conditions on the grounds that the driving license of the driver
was not valid for the National Capital Territory of Delhi and that the
insured (appellant) had failed to produce the permit inspite of notice
under Order 12 Rule-8 CPC. In this view, the insurance company,
though directed to pay compensation awarded by the tribunal to the
claimants, was granted liberty to recover it from the appellant.
3. The appeal was brought with delay of 1580 days, with application
under Section 5 of Limitation Act. It is stated in the said application
(CM No.9820/2013) that after passing of the impugned judgment, the
appellant herein had moved an application under Order 9 Rule-13 CPC
with another application under Order 21 Rule-26 CPC in the course of
execution case no.68/09 but the appellant was constrained to withdraw
the same on 02.05.2013 and, thereafter, the present appeal was filed. In
the given facts and circumstances, the delay is condoned and the appeal
is entertained on merits.
4. The reason which impelled the tribunal to return the findings
about breach of terms and conditions of the policy and so as to grant
recovery rights to the insurance company are set out in (para 15 of) the
impugned judgment thus:-
"Respondent No.3 had examined Mr. Rajesh Kumar its A.O. Mr.
Kumar testified that they had issued notice U/o 12 rule-8 to the
insured for producing the policy, permit and driving licence of the
driver. The notice was served but the required documents were
never produced. He further claimed that the driver did not
possess valid driving licence. It had also examined Mr. R. K.
Tiwari from Licensing Authority, Meerut. Mr. Tiwari testified
that they had issued a licence in the name of Respondent
No.1/driver. The same was not valid in Delhi. They issue driving
licence valid in Delhi only when the licence holder produces a
training certificate from a specified institute. Driver of the
offending vehicle was not supposed to drive the vehicle in Delhi.
I find on record certified copies of the criminal record. It
contains driving licence for previous period i.e. 11.12.02 to
10.12.05. It clearly contains stamp to the effect "it was not valid
in Delhi". Additionally, we can draw presumption against
Respondent No.2 because he did not comply with notice U/o 12
rule-8 that the vehicle was not carrying valid permit for Delhi on
the date of accident. "
5. The copy of the license which was held by the driver (second
respondent herein) was submitted on the record of the tribunal (at page
189) and clearly shows that it was issued on 11.12.2002 by the
competent authority at Meerut, initially valid up-to 10.12.2005 and,
thereafter, renewed periodically, its then validity being confirmed to be
up-to 16.03.2012 as per certificate issued by the licensing authority,
Meerut on 25.01.2010 (page 51 of the paper book).
6. Undoubtedly, the driving license bears an endorsement that it is
not valid for purpose of National Capital Territory of Delhi. It is stated
that this endorsement had to be made by the said authority in view of
directions of this Court in orders dated 09.12.2002 & 14.11.2003 in
Civil Writ petition no.3436/1998 (Rajeev Awasthi Vs. UOI & Ors.). The
reasons why there was an inhibition against the driving license to be
held good and valid for National Capital Territory of Delhi are because
the licensing authorities were asked not to issue driving licenses, unless
the license holder obtains a certificate of training from the specified
institute. This, however, does not mean that the driving licenses issued
by the competent authority of another State will not be a proof of
confirmation as to the competence of the driver to drive, not the least
lead to the assumption that the driver would not have had the requisite
capacity to drive the motor vehicle on roads within National Capital
Territory of Delhi to the effect that negligence on his part leading to the
accident from which a claim for compensation arises is bound to be
inferred.
7. The Supreme Court in National Insurance Company V. Swaran
Singh (2004) 3 SCC 297, in para 110 (vi), ruled as under:-
"(vi) Even where the insurer is able to prove breach on the part of
the insured concerning the policy condition regarding holding of
a valid licence by the driver or his qualification to drive during
the relevant period, the insurer would not be allowed to avoid its
liability towards the insured unless the said breach or breaches
on the condition of driving licence is/are so fundamental as are
found to have contributed to the cause of the accident. The
Tribunals in interpreting the policy conditions would apply "the
rule of main purpose" and the concept of "fundamental breach"
to allow defences available to the insurer under Section 149(2) of
the Act."
8. In view of the above law laid down by the Supreme Court, the
insurance company cannot be allowed to escape its liability, unless it
shows the breach of the conditions of the driving license to be so
fundamental as to have contributed to the cause of accident. Since that
cannot be said to be the case at hand, the finding of the tribunal to this
effect cannot be sustained.
9. As regards the other requirement, the appellant in (para 9 of) the
memorandum of appeal submitted that there was a valid permit issued
by the transport authority, Delhi in respect of the truck for the period in
question. This is confirmed by copy of the said permit (page 57 of the
paper book) valid for the period 31.10.2002 to 12.05.2006. Inspite of
opportunity, the insurance company did not file any reply to the
memorandum of appeal nor raises any issue as to the genuineness of the
document now shown. Thus, it must be deemed to have admitted the
contention of the appellant with regard to the permit.
10. In the result, the appeal is allowed. The direction of the tribunal
granting recovery rights to the insurance company is set aside.
11. The appeal is disposed of in above terms.
12. The statutory deposit, if made, shall be refunded.
R.K. GAUBA
(JUDGE)
FEBRUARY 12, 2016/ssc
