Delhi High Court
Paramjit Singh vs New India Insurance Co. Ltd. And ... on 31 May, 2016
$~R-127
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 31.05.2016
+ MAC.APP. 83/2008
PARAMJIT SINGH ..... Appellant
Through None
versus
NEW INDIA INSURANCE CO. LTD. AND ORS.
..... Respondents
Through Mr. Pankaj Seth, Adv.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. The motor accident claims tribunal (tribunal) decided an accident
claim case (suit No.452/06, old No.810/99) which had been instituted by the
third to sixth respondents (claimants) on 26.11.1999 seeking compensation
for death of Bijender Singh in a motor vehicular accident that occurred on
11.05.1999 due to negligent driving of the vehicle bearing registration
No.DL 1G 7977 (offending vehicle). The offending vehicle was insured
against third party risk for the period in question with New India Insurance
Co. Ltd. (insurer). It was owned by the appellant and concededly driven by
Shiv Dhan (second respondent) at the time of the accident. The tribunal
held by the impugned judgment that the accident leading to the death had
occurred due to negligent driving of the offending vehicle and held the said
driver, and the appellant, jointly and severally liable to pay compensation
which was awarded in the sum of `5,37,600/- with interest.
2. During the contest before the tribunal, the insurance company (first
respondent) had taken the plea that there was a breach of terms and
conditions of the insurance policy as the driver (second respondent) was not
holding a valid or effective driving license. Evidence in this regard was led
wherein the insurance company examined, amongst others, the driver Shiv
Dhan himself (R3W1).
3. The evidence brought out, as was noted by the tribunal against third
issue (internal pages 16 to 23 of the impugned judgment) that the driver did
hold a valid and effective driving license for the period 14.02.1996 to
13.02.1999 and thereafter another valid driving license for the period
23.12.1999 and 22.12.2002. On this basis, the tribunal concluded that the
driver was not holding a valid and effective driving license for the period
13.02.1999 to 23.12.1999, the said period covering the date of accident
(11.05.1999). On such conclusions the plea of the insurance company about
breach of terms and conditions of the policy was upheld and it was granted
recovery rights against the appellant.
4. By order dated 11.02.2008, notice was issued to and accepted on
behalf of the insurance company. By order dated 30.04.2008, the appeal
was admitted and directed to be shown in the category of regular matters, to
come up on its own turn. Though it was dismissed in default on 12.01.2009,
on application later moved, the appeal and the interim protection granted by
order dated 11.02.2008 were restored on 28.04.2009. None appeared on
either side on the last date when the matter was taken up. Today none has
appeared for the appellant in spite of calls.
5. The learned counsel for the insurance company has been heard.
6. The breach on account of which the insurance company's plea for
recovery rights was granted cannot be said to be a fundamental breach or to
have contributed to the cause for accident. In the facts and circumstances,
the appeal deserves to be allowed merely with reference to the observations
of the Supreme Court in para 110 in the judgment reported as National
Insurance Co. Ltd. v. Swaran Singh (2004) 3 SCC 297 :
" 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 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
insured under section 149(2) of the Act.
7. Thus, the recovery rights granted against the appellant are set aside.
8. Statutory deposit, if made, shall be refunded.
9. The appeal is disposed of in above terms.
10. A copy of this judgment shall be sent by the registry to the claimants
and the insurance company.
(R.K. GAUBA)
JUDGE
MAY 31, 2016/VLD
