Full Text
HIGH COURT OF DELHI
SHRI SIDDHARTH GROVER ...... Appellant
Through: Mr. Ashok Popli, Adv.
Through: Mr. Pankaj Seth, Adv. for R-5/Insurance
Company.
SHRI SIDDHARTH GROVER ...... Appellant
Through: Mr. Ashok Popli, Adv.
Through: Mr. Pankaj Seth, Adv. for R-4/Insurance
Company.
JUDGMENT
1. A very short question arises for consideration in these two Appeals, that is, whether the Respondent New India Assurance Company Limited proved the breach of the terms and conditions of the policy on the part of the insured so as to avoid its liability. 2013:DHC:237
2. By the impugned judgment while awarding compensation in the two Claim Petitions,in favour of the Claimants the Motor Accident Claims Tribunal (the Claims Tribunal) granted recovery rights holding that as per the driving licence Ex.R3W1/G the driver of the offending vehicle (Respondent Nasiruddin) was authorized to drive only a Light Motor Vehicle (Commercial); and since the vehicle involved in this accident was a Heavy Motor Vehicle, the insured committed breach of the terms and conditions of the policy.
3. It is not disputed that the vehicle involved in the accident was a Heavy Motor Vehicle. It is also proved that a notice Ex.R3W1/A under Order XII Rule 8 CPC was served upon the driver and the owner to produce the driving licence No.C08102002317657 issued on 28.10.2002 and which was to expire on 27.10.2005. This driving licence was issued by the Licensing Authority, North West Zone, Delhi on 06.02.2000 and was renewed on 28.10.2002. The Respondent Insurance Company did not ask the driver and the owner to produce any other driving licence which might be valid to drive a Heavy Motor Vehicle.
4. The impugned judgment makes a mention about the driving licence placed on record by the owner and the driver issued from Kolkata, West Bengal showing that Respondent No.1 was authorized to drive a Heavy Goods Vehicle. The Claims Tribunal, however, held that it was for the owner and the driver to prove that the driving licence issued by the Transport Authority, Kolkata was valid and effective. The Claims Tribunal fell into error in appreciating the true legal position.
5. It is no longer res integra that the onus to prove the breach of the terms and conditions of the policy is on the insurer.
6. In Sohan Lal Passi v. P. Sesh Reddy, (1996) 5 SCC 21; the three Judge Bench decision of the Supreme Court while referring to Section 96 (2) (b)
(ii) of the Motor Vehicles Act, 1939 held that this Section cannot be interpreted in a technical manner. Section 96 (2) (b) (ii) only enables the Insurance Company to defend the liability to pay the compensation on the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. It was held that if the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. The Supreme Court held that the insurer has to satisfy the Tribunal that such violation or infringement on the part of the insured was willful. The relevant part of the report is extracted hereunder:-
7. Similarly, in National Insurance Company Limited v. Swaran Singh & Ors., (2004) 3 SCC 297, the Supreme Court observed that in order to avoid its liability it is not sufficient for insurer to show that the person driving at the time of the accident was not duly licensed but it must further be established that there was breach on the part of the insured.
8. Turing to the facts of the instant case, the insurer did not ask the driver and the owner to produce the driving licence issued by the Kolkata Transport Authority, West Bengal which apparently was valid to drive a Heavy Goods Vehicle. In spite of this, the driving licence was produced by the driver/owner and was available on record before the Claims Tribunal. It was for the Respondent Insurance Company to prove that the driving licence issued by the Kolkata Transport Authority, West Bengal was not genuine and thus, the Respondent Insurance Company was entitled to avoid the policy of insurance.
9. In my view, the Respondent Insurance Company failed to prove the wilful breach of the terms and conditions of the policy on the part of the Insured. The impugned order so far as it grants recovery rights against the Appellant cannot be sustained; the same is accordingly set aside.
10. The Appeals are allowed in above terms.
11. Statutory amount of `25,000/-, if any, shall be refunded to the Appellant in each of the cases.
12. Pending Applications stands disposed of.
JUDGE JANUARY 15, 2013 vk