Delhi High Court
Bajaj Allianz General Insurance ... vs Virender Parshad Shah & Ors. on 15 September, 2017
$~R-211
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 15th September, 2017
+ MAC.APP. 373/2010 and CM 11098-11099/2010
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD. ..... Appellant
Through: Ms. Neerja Sachdeva, Advocate
versus
VIRENDER PARSHAD SHAH & ORS. ..... Respondents
Through
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The insurance company, on which the liability to pay the
compensation in favour of the first to fifth respondent (collectively,
the claimants) has been fastened by the judgment dated 01.04.2010 on
account of death of Asha in a motor vehicular accident that occurred
on 28.08.2007, is in appeal to only question the rejection of its defence
that there was a breach of the terms and conditions of the insurance
policy in respect of the offending vehicle, it being a three wheeler
scooter bearing registration no.DL-1RK-0917 (TSR) concededly
insured with it against third party risk, on the contention that the
person driving (Khurshid Alam) was not the permit holder, the permit
(Ex.R3W-1/1) carrying a stipulation that it was not transferrable and
only the holder thereof (Naeem Ahmad) was authorized to drive.
2. Similar plea was rejected by this court in MACA 811/2010 Iffco
Tokio General Insurance Co. Ltd. Vs. Md. Muslim @ Md. Hussain &
Ors., decided on 14.03.2016 with the following observations :
"9. The letting of the TSR on hire may amount to
breach of permit conditions entailing penal action under
the MV Act. But this, however, does not mean that the
insurance company can refer to the said breaches as
fundamental breaches of the insurance policy so as to
seek to be absolved of its liability to indemnify. This
Court in a series of judgment on the subject has rejected
such contentions of the insurance companies. Reference
may be made to National Insurance Co. Ltd. vs. Ram
Rati & Ors. in MAC Appeal No. 11/2008 decided on
18.01.2008, Mahender Singh vs. Oriental Insurance Co.
Ltd. & Ors. in MAC Appeal No. 430/2010 decided on
10.5.2012, National Insurance Company Ltd. vs. Suresh
Kumar & Ors. in MAC Appeal No. 424/2009 decided on
1.11.2012 and New India Assurance Co. Ltd. vs. Prem
Rani & Ors. in MAC appeal No. 885/2010 decided on
18.3.2015. In Mahender Singh (supra), the learned
single judge while repelling similar contentions of the
insurance company, in almost identical fact situation,
observed as under:-
"Thus, the user of a transport vehicle for the
purpose not allowed by the permit would be
using a goods vehicle as a passenger vehicle, a
passenger vehicle as a goods vehicle, etc. and
not each and every contravention of the
condition of permit issued by the concerned
Transport Authority. Thus, simply because the
vehicle was driven by a person other than the
permit holder cannot be said to be a user of the
transport vehicle for the purpose not allowed by
the permit under which the vehicle was used."
3. The appeal is, therefore, dismissed. The pending applications
also stand dismissed.
4. By order dated 04.06.2010, the insurance company had been
directed to deposit the entire awarded amount with the tribunal within
the period specified. The said amount was allowed to be released by
order dated 17.08.2010. Thus, no further direction in such regard are
called for.
5. The statutory amount shall be refunded.
R.K.GAUBA, J.
SEPTEMBER 15, 2017
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