Delhi High Court
The New India Assurance Co Ltd vs Prem Vardhan & Ors on 16 December, 2019
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 16.12.2019
+ MAC.APP. 1049/2017 & CM APPL. 16446/2019
THE NEW INDIA ASSURANCE CO LTD ..... Appellant
Through: Mr. Anshum Jain, Advocate.
versus
PREM VARDHAN & ORS ..... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal impugns the award of compensation dated 08.09.2017,
passed by the learned MACT in Suit No. 89/2014 (MACT No. 357247/16),
on the ground that right of recovery has not been granted to the appellant-
insurer which has been held liable for payment of the compensation amount
jointly and severally with respondent no. 2-owner of the vehicle; the owner
has been served through publication.
2. The impugned order in this regard has reasoned as under:
"14. Now conning to the fact of the case at hand.
i) From the testimony of R3W1, it becomes crystal clear
that the licence possessed by respondent No.1 at the
time of accident was forged and fabricated. It means
that he was driving the offending TSR without any
valid driving licence which amounts violation of the
terms and condition of the insurance policy.
However, the testimony of R3W1 is not sufficient to
establish that there was any willful breach on the part
of respondent no. 2 as there is no evidence that he
had any knowledge that the said licence was forged
or fabricated. The possibility that respondent no.1
might have cheated respondent no.2 to get
employment cannot be ruled out. The onus was on the
insurance company to establish that there was a
willful breach of terms and condition of the policy on
the part of respondent no. 2. But the testimony of
witnesses examined by the insurer is not sufficient to
prove this fact. Though insurance company has a
right to recover the said amount from the driver of
the vehicle, yet since he had already died, no such
right can be conferred upon the insurer. Since
insurance company failed to establish any willful
breach of terms and condition of the policy on the
part of respondent no.2, insurance company is not
entitled for recovery rights qua respondent no. 2
without filing a separate suit.
ii) Since the offending vehicle belonged to respondent
no. 2 and it was insured with respondent no. 3, both
are jointly and severally liable to pay compensation.
Accordingly, issue no. 2 is decided in favour of
petitioner and against the respondents."
3. It is the appellant's case that respondent no. 2 had not led any
evidence after filing his written statement and he abandoned the
proceedings. His written statement, to the effect that he had seen the driving
licence and tested the skills of the driver, remained unverified. In the
circumstances, the same cannot be taken as defence.
4. It is argued that such defence would be available only in terms of the
decisions of the Supreme Court in United India Insurance Co. Ltd. vs. Lehru
& Ors., AIR 2003 SC 1292, Pepsu Road Transport Corporation vs.
National Insurance Co., (2013) 10 SCC 217 and National Insurance Co.
Ltd. vs. Swaran Singh & Ors., (2004) 3 SCC 297.
5. As noted hereinabove, no monies can be recovered from the driver.
However, since respondent no. 2-the owner of the vehicle has not been able
to lead the evidence to the effect that he had indeed seen the driver's licence
and ex-facie found it to be valid and that he had employed the driver after
testing his driving skills, the requirement of the test as laid down in the
aforementioned judgments has not been satisfied.
6. In the circumstances, the appellant-insurer is granted right of recovery
against respondent no. 2-the owner of the vehicle.
7. The statutory amount, alongwith interest accrued thereon, be returned
to the appellant.
8. The appeal is disposed-off in the above terms.
NAJMI WAZIRI, J
DECEMBER 16, 2019
AB
