Grant of recovery rights to the insurer based on breach of insurance policy terms and awareness of minor son's driving.

JUDGMENT

Rekha Palli, J. (Oral)--The present appeal under Section 173 of the Motor Vehicles Act, 1988 seeks to assail the award dated 26.11.2021 passed by the learned Motor Accident Claims Tribunal in MACP No. 5171/2016. Vide the impugned award, the learned Tribunal, while awarding a compensation of Rs.16,32,700/- in favour of the claimants, has granted recovery rights to the insurer.

2. The appellant, who is the owner of the car/offending vehicle, bearing registration no. DL-4CAH 6055, has approached this Court being aggrieved by the grant of recovery rights in favour of the insurer.

3. It may be noted that recovery rights have been granted in favour of the insurer by the learned Tribunal after taking into account the fact that the offending vehicle, at the time of the accident, was admittedly being driven by the appellant's minor son, who did not possess any driving licence. The learned Tribunal, therefore, came to a conclusion that the appellant, by permitting his minor son to drive the vehicle, acted in breach of the terms of the insurance policy. Consequently, the insurer was granted recovery rights by the learned Tribunal

4. The sole contention of learned counsel for the appellant is that the learned Tribunal has erred in granting recovery rights to the insurer as it failed to appreciate that the offending vehicle was being driven by the appellant's minor son without his knowledge and permission and therefore, it could not be said that the appellant had wilfully breached the terms of the insurance policy. He submits that at about 11:45 AM on 06.06.2013, i.e., the time of the accident, the appellant was in his office when his minor son took the keys of the car from his bed side drawer which was inadvertently not locked at the relevant time. His plea, thus is that since the car was taken out by the appellant's minor son without his permission and knowledge, the appellant cannot be said be in wilful breach of the terms of the insurance policy.

5. On the other hand, learned counsel for the insurer submits that the learned Tribunal has rightly rejected the appellant's plea that the car was being driven by his minor son without his knowledge. He submits that the appellant was aware that his son did not possess a valid driving licence and therefore, the Tribunal has rightly granted recovery rights to the insurer.

6. As the only plea of the appellant is that the learned Tribunal has erred in coming to the conclusion that he was aware of the insured car being driven by his minor son, it could not be said that there was any wilful or conscious breach of the terms of the insurance policy on his behalf, it may be appropriate to first note the relevant extracts of the impugned award on this aspect. The same read as under:

"39. Though in his affidavit Ex. R1 W1/A, the respondent no.1 stated that he was getting late for attending his tuition class and his father was also not present, he took keys of car from the drawer without knowledge, consent and permission of his father. However, in the cross-examination he admitted that he had been driving car off and on for the last about one year prior to 06.06.2013 and he had driven car no. DL-4CAH-6055 on two occasions prior to 06.06.2013.

40. Respondent no.2/registered owner has also appeared in witness box as R2W1. He also deposed that he never allowed respondent no.1 to drive his car and respondent no.1 in his absence without his consent took his car. However, in reply to notice under Section 133 of Motor Vehicles Act Ex. R2W1/R-2, he has not disclosed that the alleged vehicle was being driven by respondent no.1 without his consent. He has also admitted in the cross-examination that except the present proceedings he has not given it in writing either before police authority or before concerned Juvenile Justice Board that his son had taken the aforesaid car without his knowledge, consent and permissions. Hence, the defence as taken by respondent no.2 is after thought and having been taken