Delhi High Court
Indraj Singh vs Oriental Insurance Company & Ors on 6 May, 2016
$~R-77
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.05.2016
+ MAC.APP. 554/2007 and CM No.12212/2007 and 5645/2009
INDRAJ SINGH ..... Appellant
Through: None
versus
ORIENTAL INSURANCE COMPANY & ORS .... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. By a common judgment passed on 11.05.2007, the Motor Accident
Claims Tribunal (Tribunal) decided three connected accident claim petitions
(suit No.270/2000, 261/2000 and 269/2000) on account of the death of Bano
Begum, Master Zaved and Anjum Khan in a motor vehicular accident that
occurred on 02.12.1999 involving negligent driving of a bus bearing
registration no. DL-1P-2000 (offending vehicle) proved at the inquiry to
have been driven in a negligent manner by the second respondent (driver).
The bus concededly was owned by the appellant who had been impleaded as
a party (second respondent) before the Tribunal, in addition to the first
respondent (insurer).
2. During the inquiry into the three claim petitions, the insurer had taken
the plea that the driver was not holding a valid or effective driving license.
This contention was resisted by the appellant on the plea that at the time of
engaging the second respondent as a driver of the offending vehicle, his
driving licence had been properly checked and his driving test was taken to
ensure that he was capable and competent to drive.
3. The insurance company, by its evidence, sought to prove that in the
corresponding criminal case registered, the second respondent had been
prosecuted not only for the fatal accident but also for the offence of driving
of a motor vehicle without a valid driving license punishable under Section
3 read with Section 181 of the Motor Vehicles Act, 1988 (M.V. Act). The
insurer's witness (R3W1) also proved on record that a notice under Order 12
Rule 8 of the Code of Civil Procedure, 1908 (CPC) had been issued to the
owner / insured but inspite of delivery, he had failed to produce the valid
driving licence.
4. The tribunal while awarding compensation in favour of the claimants
in the three cases ( third to sixth respondents herein) directed the insurance
company to pay under the insurance policy but granted it recovery rights
against the appellant, holding that the breach of the terms and conditions of
the policy had been brought home.
5. The appeal challenges the grant of recovery rights reiterating the
defence taken before the tribunal that at the time of engagement of the
second respondent as the driver, his driving license had been checked and
his capability to drive verified by appropriate test. In this context, the appeal
refers to the testimony of the appellant, who had appeared at the inquiry (as
RW1) and also a copy of the driving license (Mark A) which had been
submitted on record.
6. At the hearing, neither side has appeared to assist. This was the state
of affairs even on the earlier date of hearing. There is no good ground to
defer the matter yet again.
7. On perusal of the record, it is found that the contention of the
appellant must be accepted. He had placed on record a copy of the driving
licence (Mark A) which undoubtedly shows that though it was issued on
21.01.2004, as noted by the tribunal in the impugned judgment, the licensee
(second respondent) was in possession of a driving license since 24.04.1993
in respect of light motor vehicle (commercial) and from 27.10.1996 for
heavy transport vehicle.
8. In these circumstances, the tribunal fell into error by concluding that
the driving licence was issued in favour of the second respondent only in the
year 2004. Since the driving licence (mark A) was apparently a renewed
driving licence, further investigation was required with regard to the
previous driving licences held by him. No such investigation has been
carried out by the insurance company.
9. Be that as it may, following the view taken in National Insurance
Company V. Swaran Singh (2004) 3 SCC 297 and United India Insurance
Company Ltd. V. Lehru & Ors. (2003) 3 SCC 338, the evidence of the
appellant as RW-1 is found to be the complete answer to the defence taken
by the insurance company. The owner of the vehicle having exercised due
diligence, there is no case made out for breach of terms and conditions of the
policy.
10. Thus, the recovery rights granted against the appellant are set aside.
11. Statutory deposits, if made, shall be refunded.
12. The appeal is disposed of in above terms. The pending applications
also stand disposed of.
R.K. GAUBA
(JUDGE)
MAY 06, 2016
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