S.N. Paul vs Kuldeep Singh And Ors
2016 Latest Caselaw 3146 Del

$~R-52

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: 02.05. 2016
+      MAC.APP. 459/2007 and CM No.15760/2007, 10304/2007 and
       15759/2007
       S.N. PAUL                                           ..... Appellant
                          Through: None

                          versus

    KULDEEP SINGH AND ORS                     ..... Respondents
                  Through: Manoj Ranjan Sinha and Ms. Arpita
                  Kumari, Advocate for R-3
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
                          JUDGMENT

R.K.GAUBA, J (ORAL):

1. The first respondent was riding on the pillion of scooter no.DL-1SJ- 3880 (scooter) driven by his brother Bhupender Singh on 03.04.2005 when at about 11.00 a.m. it was involved in a collision against Maruti car bearing registration no.DL-9CD-7435 (car), driven by the second respondent, it being admittedly registered in the name of the appellant and concededly insured against third party risk for the period in question with the third respondent.

1.1 The first respondent (claimant) having suffered injuries in the process, instituted an accident claim case (suit no.208/2006) on 14.10.2005 before the Motor Accident Claims Tribunal (tribunal) invoking Sections 166 and 140 of the Motor Vehicles Act, 1988 (M.V. Act).

2. The tribunal, after inquiry, passed judgment on 23.04.2007 whereby the case of the claimant about the accident having occurred due to negligence on the part of the second respondent (driver of the offending vehicle) was upheld and he, as well as the appellant, were made jointly and severely liable to pay compensation which was assessed in the sum of ₹1,60,000/-.

3. The third respondent (insurer), having admitted the issuance of insurance policy against third party risk, took the plea of breach of the terms and conditions on the ground that the driver of the offending vehicle was not holding a valid or effective driving license. The tribunal found that though the driver had a driving license valid for the period 20.12.2001 to 19.12.2004, it having elapsed was renewed on 27.04.2005 to be valid upto 26.04.2008 and, thus, concluded that on the date of accident (03.04.2005), there was no valid or effective driving licence in possession of the driver. On the basis of this finding, the plea of insurance company as to the breach of terms and conditions of the policy was accepted and, though called upon to satisfy the award, it was granted right to recover the compensation thus paid from the owner of the offending vehicle (appellant).

4. The appellant, by the appeal at hand, raises issue about contributory negligence on the part of the driver of the scooter, also contends that the award is inflated and further that the above finding of the tribunal should not have resulted in recovery rights.

5. Per contra, by cross-objections (CM No.15759/2007), the insurance company submitted that instead of being called upon to satisfy the award, it

should have been exonerated given the finding about breach of the terms and conditions.

6. At the hearing, none appeared for the appellant. Arguments of the learned counsel for the insurance company have been heard and the record perused.

7. The claimant had examined himself at the inquiry as PW-1 and also relied on the evidence of one Praya Singh (PW-2), the Medical Record Supervisor of Sir Ganga Ram Hospital. On the other hand, the appellant examined himself as R2W1, the insurance company having also led evidence by examining Devender Singh (R3W1) and Mr. R.K. Arora (R3W2), officials from the office of RTO and the insurance company respectively.

8. Noticeably, the driver of the offending vehicle (car) was not called in to depose even by the appellant. The evidence of the claimant (PW-1), on the strength of his affidavit (PW1/A), clearly brings out that the car had come in a rash manner causing the accident against the scooter, resulting in injuries being suffered by the claimant. As noted by the tribunal, there is nothing in the cross-examination of PW-1 to disbelieve his testimony. In the facts and circumstances of the case, the plea on the subject of negligence cannot be accepted and there is no reason why the finding returned by the tribunal should be disturbed.

9. Given the nature of injuries suffered by the claimant (compound fracture of both bones of the right leg) and the prolonged period of treatment during which medical bills were incurred to the tune of ₹97,663.95,

compensation awarded by the tribunal cannot be described as inflated. Therefore, there is no case made out for any reduction in the compensation.

10. On the question of breach of the terms and conditions of the insurance policy, however, the appeal of the owner of the offending vehicle must be accepted. The driver of the offending vehicle was in possession of a valid driving license prior to the accident. It so happened that the license had expired on 19.12.2004. Indeed, there was some lapse on the part of the driver to get it renewed immediately. The renewal would come on 27.04.2005, after the accident. In the given fact-situation, it cannot be said that there was any negligence on the part of the owner of the offending vehicle (insured), not the least a fundamental breach leading to the insurer being permitted to avoid its liability. The following views of the Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Ors., (2004) 3 SCC 297 should be sufficient answer to the plea for exoneration of the insurance company :-

"..(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 license 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 license is / are so fundamental as are found to have contributed to the case 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.."

11. Thus, the cross-objections with accompanying application are dismissed. The appeal is partly allowed. The recovery rights granted to the insurance company are set aside. The insurance company shall be liable to satisfy the award by appropriate deposit with the tribunal, unless already so done.

12. Statutory deposit, if made, shall be refunded.

13. The appeal and the pending applications are disposed of in the aforesaid terms.

R.K. GAUBA (JUDGE) MAY 02, 2016 yg