Delhi High Court
Oriental Insurance Company Ltd. vs Gurbax Rai & Ors. on 27 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: February 27, 2017
+ MAC.APP. 268/2008
ORIENTAL INSURANCE COMPANY LTD. ..... Appellant
Through Mr. J P N Shahi, Advocate
versus
GURBAX RAI & ORS ....Respondents
Through Mr. Survesh Bisaria, Advocate &
Mr.Prakash Chandra Sharma,
Advocate for Respondent No.1
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Impugned Award of 1st February, 2008 grants compensation of `2
lacs with interest @7% per annum to respondent No.1-Claimant on
account of injuries sustained in road accident on 21st August, 2003.
Respondents No.2 & 3 are owner and driver of vehicle in question.
Appellant is Insurer of said vehicle. Facts already noted in impugned
Award needs no reproduction for the reason that recovery rights are
sought in this appeal by appellant-Insurer on the ground that driver of
vehicle in question was driving said vehicle without any driving license.
At hearing, learned counsel for appellant-Insurer has drawn
attention of this Court to paragraph No.8 of impugned Award to point out
that driver of the truck in question was challaned by police for violation
of Section 3 of Motor Vehicle Act, 1988 i.e. driving without a driving
license. Learned counsel for appellant-Insurer submits that learned
Tribunal has erroneously brushed aside appellant-Insurer's submission
for grant of recovery rights by observing that Notice under Order XII
Rule 8 CPC was not issued by Insurer to driver of vehicle in question. So,
it is submitted that recovery rights ought to be granted to appellant-
Insurer on account of violation of Section 3 of Motor Vehicle Act, 1988
by driver of truck in question.
Respondents No.2 and 3, who are owner and driver of truck in
question were represented by counsel on 17th February, 2010 and
thereafter on 28th April, 2010 but no power of attorney/vakalatnama has
been filed by them. Even before learned Tribunal there was no effective
representation on their behalf. In this background, this appeal has been
heard and is being decided.
Upon hearing and on perusal of evidence on record, I find that
truck in question was being driven by driver without driving license and
in such a situation, recovery rights ought to be granted to appellant-
Insurer. Merely because Notice under Order XII, Rule 8 CPC had not
been given to driver of vehicle in question, would not be a ground to deny
recovery rights to appellant-Insurer as owner and driver of vehicle in
question have chosen neither to contest before Tribunal nor before this
Court. Question raised in this appeal, is no longer res integra. Hon'ble
Supreme Court in Oriental Insurance Company Ltd. vs. Zaharulnisha &
Ors., (2008) 12 SCC 385 and also in Kusum Lata & Ors. vs. Satbir &
Ors., (2011) 3 SCC 646 has reiterated that where driver did not possess
valid and effective driving license, in first instance, awarded
compensation ought to be paid by Insurer and then it be recovered from
owner and driver of vehicle in question.
In light of the aforesaid, impugned Award is modified to the extent
that appellant-Insurer is to first pay awarded amount to respondent-
Claimant (which according to appellant's counsel has already been
deposited) and then to recover it from owner and driver of vehicle in
question. The deposited amount as per order of 26th November, 2009, be
directly released by the Registry/concerned bank into bank account of
respondent-Claimant within four weeks of furnishing of bank account
details.
To the aforesaid extent, this appeal is allowed.
Statutory deposit, if any made by Insurer, be refunded as per Rules.
Copy of this judgment be given dasti to learned counsel for
respondent-Claimant.
(SUNIL GAUR)
JUDGE
FEBRUARY 27, 2017
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