IMPORTANT POINT
If the driver was not holding a valid licence, Insurer is not liable to pay compensation.

ORDER

1. Delay condoned.

2. Substitution allowed.

3. Application for abatement is set aside.

4. Leave granted.

5. This appeal is directed against the judgment and order dated 20.5.2004 passed by a Division Bench of the Punjab and Haryana High Court at Chandigarh whereby and whereunder the Letters Patent Appeal preferred by the appellant herein from the judgment and order dated 9.10.2000 passed by the learned Single Judge in the said F.A.No. 2627 of 1998 was dismissed.

6. One Balwant Singh filed an application claiming a sum of Rs. 10,00,000/- (Rupees Ten Lakhs) by way of compensation for death of his son Virender Singh in an accident which took place on 5.2.1997. The owner of the vehicle contested the said claim. Appellant herein, inter alia, raised a contention before the Tribunal that the driver of the vehicle, namely, Karan Arora was a minor on the date of the accident and was not holding a valid and effective driving licence and thus it was not liable to reimburse the owner of the vehicle.

7. In view of the aforementioned stand taken by the appellant inter alia the following issue was framed:

Whether the accident resulting in death of Virender Singh alias Rinku, took place due to rash and negligent driving of car bearing registration No. HR41/3347 by respondent driver Karan Arora?

8. While determining the said issue the learned Tribunal opined that the Insurance Company was not liable for payment of the amount of compensation to the claimants, stating:

“From the bare perusal of the evidence of respondent driver Karan Arora appearing as RW1, which has been reproduced almost in its entirety in para nos. 19 to 22 at pages 10 to 13 of this award, it becomes absolutely clear that he was aged about 15 years, he does not know driving; he was born on 7.8.1983 and that he is not having any driving licence till 25.7.1998, when his statement was recorded. In these circumstances, I return a firm finding that respondent driver Karan Arora had no valid/effective driving licence on the day of the accident i.e. 5.2.1997.”

9. An appeal under Sec.173 of the Motor Vehicles Act 1988 was filed before the High court which was marked as First Appeal from Order No.2627/1998. A learned single Judge of the said Court allowed the said appeal, holding:

“After considering the rival contentions of the parties, I am of the opinion that the material point for determination is whether there was any breach of contract between the owner of the vehicle and the insurance company. If the breach is committed on behalf of the vehicle, certainly the Insurance Company has a case. In order to bring the case within the mischief of “breach” it has to be proved that there was a willful default on the part of the insured. I have already stated above that no sane father would like to give the custody or keys of the vehicle to his minor son aged 14 years much less to the friend of the minor. Had Rakesh Kumar Arora parted the possession of the vehicle to his son he would have contemplated very easily that by doing so he would have incited the trouble. The Hon’ble Supreme Court 1987 while interpreting the expression “Breach” came to the conclusion that if it is proved on the record that the owner of the vehicle had done every thing his power to keep, honour, and fulfil the promise, in such a situation he cannot be held guilty of a deliberate breach. There is no evidence on the record to indicate that the owner of the vehicle parted the keys of the vehicle to his son deliberately or knowingly. If in the absence of the father son takes the keys of the vehicle and drives the vehicle for a fun and caused accident, it cannot be said that there was an express or implied consent on the part of the owner. The judgments which have been relied upon by the learned counsel for the Insurance Company may not be any assistance to him for the simple reason that in the said judgments it has proved prima facie that there was a breach of contract on the part of the insured.”

10. A Letters Pa