Delhi High Court
United India Insurance Co. Ltd vs Smt Anita Devi And Ors on 17 January, 2022
$~37
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.01.2022
+ MAC.APP. 15/2022 & CM APPL. 2953-54/2022
UNITED INDIA INSURANCE CO. LTD ..... Appellant
versus
SMT ANITA DEVI AND ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Sankar N.Sinha, Advocate.
For the Respondent: Mr. Somnath Parashar, Advocate for R-1 to 4.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. The hearing was conducted through video conferencing.
2. Appellant impugns award dated 27.11.2021 to the limited extent
that it grants recovery rights against the driver of the vehicle.
3. Learned counsel for the appellant submits that since the vehicle
was stolen and driver was a professional thief there was no liability on
the insurance company to pay the amount.
4. The factual matrix of the case is that on 28.01.2015 the
deceased was going to Pocket-1, Sector B-4, Narela, Delhi on a scooty
and at about 5.30 AM when he reached near Pocket 13, Sector-4,
Signature Not Verified
MAC.APP.15/2022 Digitally Signed 1
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:17.01.2022
Signing Date:17.01.2022 23:32:45 22:00
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
Narela, Shahpur Road, Narela, Delhi the offending Eeco Car being
driven in a rash and negligent manner by one Sh. Niraj @ Mika came
and hit the scooty of the decease with great force. As a result of the
forceful impact deceased fell down and sustained fatal injuries.
5. The tribunal has found that the offending vehicle was stolen by
Niraj @ Mika and a complaint was already lodged with Police Station
Narela with regard to the theft of the offending vehicle. The vehicle
was insured with the appellant.
6. The question that arises for consideration is as to whether the
insurance company is absolved of the liability to pay the amount in a
case where the vehicle is stolen and unauthorisedly being driven by
somebody else.
7. The Supreme Court of India in United India Insurance
Company vs. Lehru and Ors, 2003(3) SCC 338 has held that in order
to avoid the liability, the insurer must establish that there was a willful
breach on the part of the insured.
8. Admittedly in the present case the insurance company has not
been able to show any breach on the part of the insured to avoid its
liability.
9. The judgment in the case of Lehru (supra) was also considered
by the High Court of Karnataka in MFA No. 5342 of 2010 (MV) order
dated 05.07.2018 titled Sri Sathish Kini vs. Smt. Jnaneshwari
M.H.Nutan wherein, in similar circumstances, the Court has held that
Signature Not Verified
MAC.APP.15/2022 Digitally Signed 2
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:17.01.2022
Signing Date:17.01.2022 23:32:45 22:00
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the judgment in Lehru (Supra) is complete answer to the contention of
the insurance company and the insurance company may have a claim
for contribution from the driver.
10. I am in respectful disagreement with the said judgment of the
Madras High Court in New India Assurance Co Ltd vs. Selvarajamani
& Ors, 1998 ACJ 547 relied on by learned counsel appearing for the
appellant. Said judgment does not consider the proposition as laid
down by the Supreme Court in Lehru (supra) as to whether there is a
willful breach on the part of the insured or not so as to entitle the
insurer to avoid the liability.
11. Furthermore, if the proposition of the insurance company was
accepted, it would militate against the very concept of a beneficial
legislation for the victims of an accident. If such a finding were to be
returned then the effect would be that even though a vehicle is insured
but is stolen, not only would the insurance company be entitled to
avoid its liability but the owner of the vehicle who has insured his
vehicle against theft and accident would be saddled with a liability for
no fault of his. Alternatively, the claimants would be left without any
remedy to seek compensation.
12. In view of the judgment of the Supreme Court in Lehru (supra),
which lays down that unless the insurance company is able to show
that there is a willful breach of the policy on the part of the insured,
insurance company cannot avoid its liability.
13. In the instant case, Tribunal has found that the vehicle was
Signature Not Verified
MAC.APP.15/2022 Digitally Signed 3
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:17.01.2022
Signing Date:17.01.2022 23:32:45 22:00
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
stolen and there was no willful breach of the terms and conditions of
the insurance policy by the insured.
14. Accordingly, I find no infirmity in impugned award whereby
the Tribunal has directed the insurance company to make the payment
of the compensation amount and thereafter recover the same from the
driver Niraj @ Mika who had stolen the vehicle.
15. I find no infirmity in the impugned award.
16. The appeal is accordingly dismissed.
17. Copy of the order be uploaded on the High Court website and
be also forwarded to learned counsels through email by the Court
Master.
SANJEEV SACHDEVA, J.
JANUARY 17, 2022
rk
Signature Not Verified
MAC.APP.15/2022 Digitally Signed 4
By:JUSTICE SANJEEV
Digitally Signed By:KUNAL SACHDEVA
MAGGU Signing Date:17.01.2022
Signing Date:17.01.2022 23:32:45 22:00
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
