The main legal point established in the judgment is the significance of holding a valid license to drive a specific type of vehicle as per the Motor Vehicles Act, and the breach of insurance policy terms and conditions due to the driver not having a valid license to drive a two-wheeler.

JUDGMENT :

REKHA PALLI, J.

1. The present appeal preferred by the insurer under Section 173 of the Motor Vehicles Act, 1988, seeks to assail the award dated 26.03.2021 insofar as it does not grant any recovery rights to the appellant against the respondent no.2/driver/owner of the offending vehicle, which was insured with the appellant.

2. Despite service, none appears for the respondents. In these circumstances, this Court has no other option, but to take up the matter for disposal without granting any further opportunity to the respondents.

3. Learned counsel for the appellant submits that once it was clear from the unrebutted testimony of the Record Clerk from the Sarai Kale Khan Transport Authority, South Zone, New Delhi that the respondent no.2 did not have a valid licence to drive a two wheeler vehicle, it was evident that the terms and conditions of the insurance policy stood breached which fact the learned Tribunal failed to consider and consequently, did not grant recovery rights to the appellant. In support of his plea, he seeks to place reliance on the decision of this Court in Bajaj Allianz General Insurance Co. Ltd. v. Akram Hussain & Ors. [MAC.APP.306/2009].

4. Having considered the submissions of the learned counsel for the appellant and perused the record, I find that Sh. Rohtash Singh, Record Clerk from Sarai Kale Khan Transport Authority, South Zone, New Delhi, who was examined as R2/W1 by the appellant, had categorically stated before the learned Tribunal that the respondent no. 2 was authorised to drive only a Light Motor Vehicle—Transport i.e., LMV-TR (Commercial Vehicle) and not a two-wheeler vehicle. In fact, this statement of the Record Clerk has been noted in paras 11 and 12 of the impugned award itself. It would, therefore, be apposite to refer to these paras of the impugned award which read as under:-

“11. Respondent no. 2 has examined one witness R2Wl Sh. Rohtash Singh, Record Clerk from Sarai Kale Khan Transport Authority, South Zone, New Delhi. He was the summoned witness. He has brought the report in regard to the driving license bearing no. DL-03-20010131199 of Sh. Jai Pal Chand S/o Sh. Mohan Chand pertaining to LMV-TR which is valid from 06.03.2019 to 07.03.2022. As per record, Jai Pal Chand is authorised to drive only LMV transport. He proved the report as Ex.R2W1/1.

12. This witness was put to the test of cross examination whereby he deposed that as per record Jai Pal Chand was authorised to drive only commercial• vehicle not two wheeler. He further deposed that he has not been issued license to drive two wheeler.

5. However, I find that despite having noted the categoric stand of the transport authority that the respondent no.2, driver of the offending vehicle, did not hold a valid licence to drive a two wheeler, which he was driving at the time of the accident, the learned Tribunal rejected the appellant’s plea that it was not liable to pay compensation. The findings of the learned Tribunal on this aspect, as recorded in para 20, read as under:-

20; Now, the court has to assess as to how much compensation be awarded to the petitioners and to whom the liability to pay the compensation has to be fastened. Primary liability for paying the damages for the injury suffered by the victim in a road accident arising out of the use of Motor Vehicle is of the driver. Since, the vehicle was owned by the respondent no. 1 itself herein, therefore, the primary liability rests upon the respondent no. 1. Here, the insurance company has argued that he is not liable to pay anything; because the driver of the offending vehicle was not having the driving license to drive the two wheeler scooty. However, that argument is not tenable. Driver was holding a valid license to drive a commercial vehicle. Therefore, a male person who is competent to drive the light motor vehicle (commercial) cannot be expected to be incompetent in driving the two wheeler. Therefore, on such a small ground, the insurance company cannot be escap