Delhi High Court
Tata Aig General Insurance Co Ltd. vs Smt Rekha Sethi & Ors. on 14 January, 2016
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th January, 2016
+ MAC.APP. 82/2014
TATA AIG GENERAL INSURANCE CO LTD.
..... Appellant
Through Ms. Shanta Devi Raman and Mr.
Arbaaz Husain, Advs.
versus
SMT REKHA SETHI & ORS.
..... Respondents
Through Mr. B K Singh, Adv. for R-7
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. This appeal is by the insurer under Section 173 of the Motor
Vehicle Act, 1988 (MV Act) impugning the award passed by the motor
accident claims tribunal (tribunal) by judgment dated 01.10.2013,
mainly to pray for recovery rights against the insured.
2. Ashok Kumar Sethi son of Sunder Dass Sethi died as a result of
motor vehicular accident on 31.12.2012 at about 10.50 PM near Captain
Gaur Marg, close to Masjid, Modi Flyover Bus Stop, New Delhi,
involving a car (make Ford) bearing registration No.DL 3 CAN 2374
(hereinafter "the offending vehicle") giving rise to cause of action for an
accident claim petition being preferred under Section 166 of the MV Act
by his legal heirs (respondents No.1 to 5 herein) registered as suit
No.13/2013. The said respondents No.1 to 5 (hereinafter referred to as
"the claimants") impleaded Sachidanand, the driver of the offending
vehicle as a respondent (sixth respondent in this appeal), also showing
in the array, the registered owner of the offending vehicle Ashok Kumar
Ratwani (seventh respondent herein), in addition to the insurer (the
appellant herein).
3. During the inquiry before the tribunal whilst the registered owner
of the offending vehicle took the plea that the vehicle was duly insured
with the appellant which fact was conceded by the latter which,
however, pleaded that there is no liability on its part because the driver
(sixth respondent) was not holding a valid driving license at the time of
the accident.
4. The claim petition was allowed by the Tribunal by judgment
dated 01.10.2013 awarding compensation in the sum of ₹15,07,600/- in
favour of the claimants, along with suitable directions as to interest and
for the awarded amount to be apportioned.
5. On the question of liability of the insurance company, the plea
founded on the evidence that the driving license presented by the driver
to the investigating police has been found to be fake was rejected
primarily on the basis of the evidence of the registered owner of the
vehicle, appearing as R2W1, to the effect that he had engaged the driver
after securing from him a duly signed bio-data as to his qualification,
experience, references and securing a copy of the driving license and
also putting him to test as to his driving capability. It is this finding
which has been challenged through the appeal at hand.
6. I have heard the learned counsel for the insurance company and
for the registered owner at length. I have been taken through the trial
court record.
7. The contentions of the appellant were noted by the Tribunal in the
impugned judgment in the following words :
"The learned counsel for the R-3/Insurance company has
argued that the Insurance Company is not liable to pay any
compensation as the driver of the offending vehicle did not
have valid and effective driving licence at the time of
accident. However, R2W-1, Sh. Ashok Kumar Ratwani has
deposed on oath that respondent No.1 was his paid driver
who was in his employment from 07.09.2011 and at the
time of employing him, R-1 had submitted a duly signed
bio-data containing amongst others, his qualification,
experience, references and specific mention of his driving
licence no.4489/2006 issued on 19.10.2006 by Licencing
Authority, Muzzaffarpur valid up to 20.12.2021. R2W-1,
Shri Ashok Kumar Ratwani has further averred that he had
taken the driving test of R-1 and he was found to be
competent and experienced driver and after getting
satisfied, he had employed the R-1 as driver."
8. The contention of the insurance company was rejected, with
reference to the judgment of the Supreme Court of India in United India
Insurance Co. Ltd. vs. Lehru & others (2003) 3 SCC 338 with
following finding:-
"Since the R-2, owner of the offending vehicle had satisfied
himself after taking the driving test of the driver and had
also inspected the driving licence of the driver and found
the same to be apparently genuine one, basing my decision
in terms of the aforesaid judgment of Hon'ble Supreme
Court of India in Lehru's case, I hereby reject the plea of
the insurance company for exoneration from liability to pay
compensation."
9. The submission of the learned counsel for the appellant
essentially is that the Tribunal has failed to take into account the version
of the driver Sachidanand, who appeared as R1W1 and deposed that he
had misplaced his driving license in June 2009 and later had obtained
another driving license from the transport authority, Nagaland. It is
submitted that in the face of such position taken by the driver, the
version of the owner, appearing as R2W1, about he having seen the
driving license at the time of engaging Sachidanand as driver on the
offending vehicle on 06.09.2011 cannot be believed.
10. In the case of United India Insurance Co. Ltd. vs. Lehru & others
(supra), the Supreme Court ruled as under:
"20. When an owner is hiring a driver he will therefore
have to check whether the driver has 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 would then take the test of the
driver. If he finds 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 RTOs, 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 absolved 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 noticed 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 Skandia, Sohan Lal Passi and Kamla
cases. We are in full agreement with the views expressed
therein and see no reason to take a different view."
11. In the considered opinion of this Court, a contradictory stand
taken by the driver cannot render the veracity of the word of the
registered owner suspect. It must be noted that in para 8 of his affidavit
(Ex.R1W1/A), the driver had also mentioned that his driving license had
been traced out in September, 2009. The fact that the police report on
record also shows the said driving licence was seized during
investigation of the corresponding criminal case adds force to the view
that the submission that the registered owner could not have seen the
original driving licence cannot be believed.
12. For the foregoing reasons, and in the circumstances, the appeal is
found to be devoid of substance and is dismissed.
13. The insurance company submits through the learned counsel that
in terms of directions in the order dated 27.01.2014, the entire awarded
amount with up-to-date interest had been deposited with the Registrar
General of this Court. Out of the said deposited amount, 80% has since
been released, the remaining having been kept in the form of fixed
deposit receipt with UCO Bank, Delhi High Court Branch, New Delhi
for a period of six months to be renewed periodically. Since the appeal
has been dismissed, the balance amount kept in the FDR shall also be
released to the claimants in terms of the impugned award. For any
further relief for enforcement of judgment/award of the Tribunal, the
claimants shall be at liberty to approach the Tribunal.
14. The statutory deposit of Rs.25,000/-, if made, shall be released to
the appellant.
R.K. GAUBA
(JUDGE)
JANUARY 14, 2016
VLD
