Delhi High Court
National Insurance Co. Ltd. vs Smt. Sunita & Ors. on 25 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: January 25, 2017
+ MAC. APP. 580/2008
NATIONAL INSURANCE CO. LTD. ..... Appellant
Through: Mr. Pradeep Gaur, Advocate
Versus
SMT. SUNITA & ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% ORAL
1. Impugned Award of 13th December, 2007 grants compensation of
`5,59,528/- (inclusive of interim award of `50,000/-) with interest @7%
p.a. to respondents-claimants on account of death of Fernandis Singh in a
road accident on 9th January, 2003.
2. The factual background of this case is already spelt out in
paragraph No.6 of impugned Award and so, needs no reproduction.
Suffice to note that appellant is the insurer of truck in question, which had
colluded with car of the injured, resulting in the unfortunate death of car
driver. The owner and driver have chosen not to contest before learned
Motor Accident Claims Tribunal and even in this appeal. None is present
on their behalf to contest this appeal. As per order of 10 th December,
2009, service is complete. It is evident from the order of 23 rd January,
2009 that this appeal is restricted to the grant of recovery rights to
appellant against owner and driver of the offending truck in question.
Although impugned Award is silent on the question of recovery rights but
learned counsel for appellant-insurer has taken specific ground in this
appeal regarding driver of the offending vehicle holding a driving license
for motor cycle and light motor vehicle whereas the vehicle insured was a
heavy transport vehicle, which was driven by respondent - Puranmal.
Learned counsel for appellant seeks recovery rights qua respondents i.e.
driver- Puranmal and owner-Chanderpal. To seek recovery rights qua
owner and driver of the offending truck, learned counsel for appellant
relies upon decision in Oriental Insurance Co. Ltd. v. Zaharulnisha
(2008) 12 SCC 385.
3. During the course of hearing, attention of this Court was drawn by
learned counsel for appellant to the evidence of Assistant Manager
(R3W1) of appellant-company to point out that notice under Order 12
Rule 8 of CPC was sent to owner of the offending vehicle in question and
as per report of Local Transport Authority, the driving license of driver of
truck in question was valid for light motor vehicle. It is pointed out that
there is evidence of the concerned witness (R3W2) from the local
transport authority to show that license of truck driver- Puranmal was
valid for light motor vehicle. Thus, it is submitted that there was no due
diligence on the part of owner of offending truck in question and so,
owner as well as driver of the offending truck in question are liable to
indemnify the appellant, who has already deposited the awarded amount.
Reliance is placed upon Sub-Section 2 of Section 10 of The Motor
Vehicles Act, 1988 to submit that for driving a transport vehicle, a license
for that category is required to be obtained.
4. Upon hearing and on perusal of impugned Award, evidence on
record and the relevant provisions of The Motor Vehicles Act, 1988, I find
that there is evidence of R3W1 and R3W2 to the effect that driver of
offending truck in question was holding driving license for light motor
vehicles, whereas he was driving a transport vehicle i.e. the truck in
question. This is clearly in violation of Sub-Section 2 of Section 10 of
The Motor Vehicles Act, 1988 and so, appellant is entitled to be
indemnified by owner and driver of the truck in question in respect of the
awarded amount with interest, which is purportedly released to
respondent-claimant.
5. In view of the aforesaid, impugned Award is modified to the extent
of granting recovery rights to appellant qua respondents No.2 & 3 i.e.
owner and driver of the truck in question.
6. The statutory amount deposited, if any, be refunded to appellant as
per rules.
7. This appeal is disposed of with aforesaid directions.
(SUNIL GAUR)
JUDGE
JANUARY 25, 2017
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