Back
2009 Supreme(Del) 1422
IN THE HIGH COURT OF DELHI
Vidya Bhushan Gupta, J.
Oriental Insurance Company Ltd. – Appellant
Vs.
Smt Kamlesh And Others – Respondents
MAC App. No. 175 of 2005 and CM No. 3988 of 2005
Decided On : 04-12-2009
For the Appellant : Joy Basu and Madhurendra
The burden is on the insurance company to prove willful breach of the terms and conditions of the policy by the insured in order to avoid liability.
Headnote:
Driving License - Motor Vehicle Accident - Section 149 of the Motor Vehicle Act, 1988 - Summary of Acts and Sections: The court discussed Section 149 of the Motor Vehicle Act, 1988, which outlines the duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. The court also referred to the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297, which emphasized the need for the insurer to prove willful breach of the terms and conditions of the policy by the insured in order to avoid liability. The court highlighted the burden on the insurance company to prove that the driver was disqualified from holding or obtaining a license or never had any license at all, and the expectation that the driving license should be with the driver and not with the owner of the vehicle.
Fact of the Case:
The case involved a motor vehicle accident resulting in fatal injuries to the deceased. The Motor Accident Claims Tribunal awarded compensation to be paid by the appellant-Insurance Company.
Finding of the Court:
The court found that the appellant-Insurance Company failed to prove that the driver of the offending vehicle was not holding a valid driving license at the time of the accident, and therefore, the appellant could not avoid liability for the compensation.
Issues: The main issue was whether the driver of the offending vehicle was having a valid driving license or not.
Ratio Decidendi: The court emphasized the burden on the insurance company to prove willful breach of the terms and conditions of the policy by the insured in order to avoid liability. It was also highlighted that the mere absence, fake, or invalid driving license or disqualification of the driver for driving the vehicle at the relevant time are not in themselves defenses available to the insurer.
Final Decision: The court dismissed the appeal, stating that there was no ambiguity or infirmity in the impugned judgment, and ordered the amount lying in the fixed deposit to be paid to the claimants in the manner and proportion as made by the Tribunal.
V.B. Gupta, J.
Appellant-Insurance Company has filed this appeal against judgment dated 8th November, 2004, passed by Motor Accident Claims Tribunal Delhi (for short as 'Tribunal').
2. Brief facts of this case are that on 6th August, 1997, deceased Joginder Singh, along with his brother Rajinder was coming back on his two-wheeler scooter No. DDP 3020, which was driven by Sh. Rajinder. When they reached the crossing of Arya Samaj Road, Karol Bagh, the scooter was hit from rear left side by another two-wheeler scooter No. DL4SR 2364, driven by respondent No. 7, in a rash and negligent manner. Due to the impact, scooter fell down and deceased received fatal injuries.
3. Vide impugned judgment, Tribunal awarded compensation of Rs. 11,40,000/- (Eleven lakhs forty thousand only.), to be paid by the appellant- Insurance Company.
4. Notice of this appeal was issued to the respondents. Initially, counsel for all respondents (except respondent No. 7) appeared. Later on, he absented. As far as respondent No. 7 (driver of offending vehicle) is concerned, his service was dispensed with vide order dated on 23rd August, 2005, passed by this Court.
5. Only question to be seen in this appeal is as to whether driver of offending vehicle was having a valid driving license or not. 6. It is contended by learned Counsel for appellant that driver of the offending vehicle did not have a valid and effective driving license. No driving license was produced by the driver and owner of the vehicle. Non-furnishing of driving license or not disclosing the details of the driving license lead to an adverse inference.
7. It is further contended that appellant had done everything within its power to ascertain the details of the driving license. The owner was issued a statutory notice under Order 12 Rule 8 of Civil Procedure Code, 1908 for furnishing copy of driving license but there was no response. It has also come on record that the owner of the offending vehicle had never seen the driving license of the driver. Thus, the owner was negligent in permitting the driver to drive the insured vehicle. Appellant could not have been saddled with any liability, as there was clear breach of the terms and conditions of the insurance policy.
8. In support, learned Counsel for appellant referred the decision of Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297
9. Appellant-Insurance Company, in its written statement nowhere took any specific plea to the effect that driver of the offending vehicle, was not holding a valid driving license. The plea taken with regard to driving license is as under:
17. In reply to para 17 of the petition it is submitted that the answering respondent had issued a Policy bearing No. 272300/31/97/40317 for the period 19.11.96 to 18.11.97 insuring vehicle bearing Engine No. 83826 and Chassis No. 39127 on the representation of Smt. Kavita to be the registered owner but unless it proved that vehicle No. DL-4SR-2364 is the insured vehicle and respondent No. 1 was holding a valid driving license and driving under the authority and control of the insured. No liability can be imposed on the answering respondent.
10. Section 149 of the Motor Vehicle Act, 1988 (for short as 'Act') provides as follows;
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-
(1) x x x
(2) No sum shall be payable by an insurer under Sub-section (1)in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court, or as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) x
