The insurer cannot escape liability unless the breach of policy conditions is fundamental and contributed to the cause of the accident.

R.K.GAUBA, J.

1. The appellant was impleaded as second party in the claim petition under Sections 166 and 140 of Motor Vehicles Act 1988 (the MV Act) by the third to sixth respondents on the allegations that he is the owner of the truck bearing registration no.DL-1G-6433 which was driven by the second respondent herein in a rash/negligent manner at 11:25 PM on 28.08.2005 for which reason there was a collision involving the said truck with three wheeler scooter no. DL-1RC-6301, consequent to which Surender Parshad Rai suffered injuries that caused his death. The claim petition registered as petition no.150/2006 was inquired into, after notices to the appellant, Ram Chander (the driver) and the first respondent herein (insurer). The insurance company admitted the insurance policy having been issued in respect of the truck for the relevant period against third party risk though it took up the defences that the insured (appellant) inspite of notice under Order 12 Rule-8 of Code of Civil Procedure, 1908 (CPC) had failed to produce a valid driving license of the driver (second respondent) or permit of the truck for the relevant period. The appellant had joined the driver in the written statement denying the involvement of the truck in the accident. At the inquiry, however, he did not lead any evidence in defence.

2. The tribunal, by judgment dated 21.10.2008, awarded compensation in the sum of Rs. 8,06,954/- in favour of the claimants and upheld the contention of the insurance company about breach of the policy conditions on the grounds that the driving license of the driver was not valid for the National Capital Territory of Delhi and that the insured (appellant) had failed to produce the permit inspite of notice under Order 12 Rule-8 CPC. In this view, the insurance company, though directed to pay compensation awarded by the tribunal to the claimants, was granted liberty to recover it from the appellant.

3. The appeal was brought with delay of 1580 days, with application under Section 5 of Limitation Act. It is stated in the said application (CM No.9820/2013) that after passing of the impugned judgment, the appellant herein had moved an application under Order 9 Rule-13 CPC with another application under Order 21 Rule-26 CPC in the course of execution case no.68/09 but the appellant was constrained to withdraw the same on 02.05.2013 and, thereafter, the present appeal was filed. In the given facts and circumstances, the delay is condoned and the appeal is entertained on merits.

4. The reason which impelled the tribunal to return the findings about breach of terms and conditions of the policy and so as to grant recovery rights to the insurance company are set out in (para 15 of) the impugned judgment thus:-

“Respondent No.3 had examined Mr. Rajesh Kumar its A.O. Mr. Kumar testified that they had issued notice U/o 12 rule-8 to the insured for producing the policy, permit and driving licence of the driver. The notice was served but the required documents were never produced. He further claimed that the driver did not possess valid driving licence. It had also examined Mr. R. K. Tiwari from Licensing Authority, Meerut. Mr. Tiwari testified that they had issued a licence in the name of Respondent No.1/driver. The same was not valid in Delhi. They issue driving licence valid in Delhi only when the licence holder produces a training certificate from a specified institute. Driver of the offending vehicle was not supposed to drive the vehicle in Delhi. I find on record certified copies of the criminal record. It contains driving licence for previous period i.e. 11.12.02 to 10.12.05. It clearly contains stamp to the effect “it was not valid in Delhi”. Additionally, we can draw presumption against Respondent No.2 because he did not comply with notice U/o 12 rule-8 that the vehicle was not carrying valid permit for Delhi on the date of accident.”

5. The copy of the license which was held by the driver (second respondent herein) was submit