Delhi High Court
M/S The New India Assurance Co Ltd vs Sh Zakir Hussain & Anr on 12 July, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 12th July, 2017
+ CM(M) 1104/2013
M/S THE NEW INDIA ASSURANCE CO LTD ..... Petitioner
Through: Mr. Pankaj Seth, Adv.
versus
SH ZAKIR HUSSAIN & ANR ..... Respondents
Through: Mr. S.R. Kamat, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
CM No. 7619/2015
As per office note on the summons returned for 11 th July, 2014,
it was stated that the first respondent Zakir Hussain had died some
years ago. The presence of second respondent had been secured and
he has appeared through his counsel.
Heard, for the reasons set out in the application, the petition
which was dismissed in default by order dated 08.01.2015, is restored
to its original number.
CM(M) 1104/2013
1. Heard. Perused. The petitioner insurance company was
impleaded as third respondent in the accident claim case (suit no.
634/2004), arising out of the accident that occurred on 09.05.2001 due
to negligent driving of truck no. HR 29 3271 which was concededly
insured against third party risk for the period in question with it. The
accident had resulted in death of one Jagdish Yadav. In the contest,
the insurance company raised the defence of breach of policy
conditions on the ground that the driving license presented by the
driver Zakir Hussain (first respondent), on verification, had been
found to be fake. It relied on report (Ex.RW1/1) obtained from the
regional transport officer, Haldwani. This plea was accepted and
while the insurance company was directed to pay compensation, it was
granted recovery rights against the said driver (first respondent) and
the owner of the vehicle (second respondent herein).
2. In the execution proceedings, the second respondent moved an
application claiming that there was a valid license in existence and
that the recovery rights have been wrongly granted. The tribunal put
this plea to inquiry by framing formal issue and calling upon the
parties to lead evidence. On the basis of that short inquiry, the
impugned judgment was passed on 18.12.2012, accepting the
contention of the registered owner (second respondent) that there was
no breach of terms and conditions of the policy.
3. It appears that from the evidence led during the inquiry it was
brought out that the driving license had been obtained by the first
respondent on the basis of a document which was fake. The said
driving license which had been obtained, however, had been renewed
from time to time, the renewal and validity having been confirmed by
the licensing authority. The obtaining of license on the basis of fake
document was an act which would be illegal and also an offence
punishable in law. But then, there is no evidence brought on record
that the registered owner (insured) was privy to such dishonest act on
the part of the first respondent. Fact remains that the transport
authority through its official confirmed before the tribunal in the
inquiry that the driving license for the period in question was valid and
effective.
4. Having regard to the law laid down by the Supreme Court in
National Insurance Co. Ltd. vs. Swaran Singh & Ors.(2004) 3 SCC
297, the plea of the insurance company cannot be accepted.
5. The petition is dismissed.
R.K.GAUBA, J.
JULY 12, 2017
nk
