Full Text
HIGH COURT OF DELHI
Date of Decision: 29th November, 2024
VEER SINGH & ANR. .....Appellants
Through: Mr. Naveen Kumar Chaudhary, Mr. Sahdev Singh & Mr. Harshit Chaudhary, Advocates
Through: Ms. Aakansha Kaul, Mr. Pravan Gupta, Mr. Mohd. Arif & Mr. Kumal, Awana Advocate for the applicant
Mr. Ravi Sabharwal, Advocate for Respondent No.4
JUDGMENT
1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed on behalf of the appellant/ Owner against the Recovery Rights granted against him to the Insurance Company/ respondent.
2. The learned Motor Accident Claims Tribunal vide judgment dated 07.08.2023 in MACT No. 781/2018 has held that on the date of the accident the driver of the offending vehicle was driving without any valid license, which entitles the Insurance Company to the recovery rights from the owner.
3. The challenge to the impugned Award by the owner is on the ground that at the time of engaging the services of the Driver, he had checked the driving license of the driver, which was found to be valid. It is only for the Digitally intermittent period when the accident occurred that the driving license had expired. The owner had taken due care and caution to check the validity of the driving license and therefore, the recovery rights may be recalled. Reliance is placed upon decision by the Apex Court in Civil Appeal No.7220/2011, titled as Beli Ram. Vs. Rajinder Kumar & Anr.
4. Learned counsel on behalf of the Insurance Company has contended that the Driving License of the driver was valid from 31.10.2011 till 30.10.2016. Thereafter, the accident occurred on 04.02.2018. The Driving License was issued afresh in March, 2018 i.e. after one month of the accident. There was no driving license with the driver from November, 2016 till March, 2018. It is submitted that it is not a case of fake driving license, but of there being no valid subsisting license in the name of the Driver.
5. Reliance has been placed upon decision by the Apex Court in Civil Appeal No. 4919/2022 (arising out of SLP (CIVIL) No. 24933/2019, Rishipal Singh Vs. New India Assurance Co.Ltd. & Ors. and a decision of this Court dated 18.11.2019 in MAC.APP 882/2019, titled as The Oriental Insurance Co. Ltd.Vs. Mohit Dabas & Ors.
6. Submissions heard and record perused.
7. Briefly stated, on 04.02.2018 at about 04:00 PM, while the injured was driving motorcycle bearing registration No. UP 14B-W-6012 and was coming from Village Rawali via Bama Road and as he crossed the Pulia of Village Dindar, a Tractor bearing No. UP 15 CF 6291 came from opposite direction. It was being driven by its driver- appellant No.1 Veer Singh at a high speed and in a rash and negligent manner and he hit the motorcycle and fled away from the spot. Because of the impact, the motorcycle fell and the Digitally occupants sustained grievous injuries.
8. An FIR bearing No. 128/2018 under Sections 279/337/338 IPC was registered at Police Station Muradnagar, District Ghaziabad, UP against the Driver.
9. The learned Tribunal vide impugned Award dated 07.08.2023 awarded compensation to the injured persons and directed the Insurance Company to deposit the awarded amount. However, the recovery rights were granted to the Insurance Company, against the owner of the offending vehicle.
10. The sole ground for consideration is whether the owner is not liable to repay the compensation amount to the Insurance Company.
11. The owner of the offending vehicle, appellant No.2 Amit Kumar, tendered his affidavit in evidence as Ex. R2W[1]. He deposed that driver Virender Singh has been known to him for more than 10 years and they have visiting terms. Since 2015, he used to handover his tractor to Virender Singh for cultivation and agricultural purposes after taking due trial of his driving and checking his driving license which was valid and effective. According to his information, neither accident had occurred on the day of the incident nor was his vehicle involved in the accident.
12. R2W[1] Amit Kumar, in his cross-examination clarified that Veer Singh had taken the Tractor 3-4 days prior to the date of accident. Though he denied that any accident was caused by the Tractor, but admitted that he did receive information about the accident caused by Veer Singh. He admitted that his tractor was seized and he subsequently got it released on supardari.
13. R2W[1] Amit Kumar further deposed in his cross-examination that Digitally before engaging Veer Singh as driver, he took photocopy of the license which seemed to be genuine. In his further cross-examination by the Insurance Company, he also stated that after having engaged Virender Singh, he had not seen the driving license. It was not within his knowledge on 04.02.2018 whether Virender Singh possessed any valid or effective driving license.
14. From the testimony of owner Amit Kumar, it emerges that driver Virender Singh from time to time, use to take his tractor for a few days for the purpose of agriculture and cultivation. First time the tractor was taken by him in the year 2015 and thereafter, was being taken from time to time. The tractor was taken by him three four days prior to the incident, but unfortunately, the accident occurred. He has categorically deposed in his testimony that in the year 2015 he had seen the driving skills of Virender Singh and had also checked his driving license. Thereafter, he never checked the driving license of the driver.
15. The Insurance Company had examined R3W[1] Sh. Prakash Chander Pathak, Head Assistant, RTO Office, who produced the original register pertaining to the driving license of Virender Singh. He deposed that it was initially valid upto 30.10.2016. It was renewed thereafter, from 06.03.2018 till 05.03.2023 and the attested copy of extract of driving license is Ex. R3W1/3 and the original driving license register is Ex. R3W1/4. In his cross-examination by the claimants, he stated that the license holder was not disqualified for the period 30.10.2016 till 06.03.2018, during which period the license was not renewed.
16. Further, in the cross-examination by the Driver and Owner, R3W[1] admitted that the driving license had not been suspended at any point of time Digitally by the Authority.
17. The pertinent question raised is that though admittedly there was a gap period in the renewal of the license during which period the accident occurred, whether under these circumstances the non-holding of driving license can be considered as breach of Insurance Policy.
18. It would be pertinent to note that the Insurance Policy Ex.R2W1/R3X it is noted that “Persons or Classes of persons entitled to drive: a person or class of persons entitled to drive is person, including the insurer provided that a person holds and effective driving license at the time of accident and is not disqualified from holding/obtaining such a license. Provided (sic..) that such a person is holding an effective Learner License may also drive the vehicle and such a person satisfies the requirements of Rule 1 of Central Vehicle Rules, 1989”.
19. Thus, Insurance Policy requires twin conditions, namely, that that a person including the insured, must hold an effective driving license at the time of accident and is not disqualified from holding or obtaining such a license. Relevantly, this is not a case of fake driving license but the license not being renewed at the time of accident.
20. The Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh & ors., 2004 (3) SCC 297, considered in detail the circumstances wherein the driver-owner may be affixed with the responsibility of reimbursing the insurance company for the compensation amount. It was observed that the Insurance Company is entitled to take the defence that the offending vehicle was being driven by an unauthorized person or a person driving the vehicle did not have the valid driving license. The onus would shift on the Insurance Company only after the owner of the Digitally offending vehicle pleads and proves that the basic fact is within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving license at the relevant time.
21. The decision of Apex Court in Swaran Singh (Supra) has been followed by this Court, in the case of Oriental Insurance Co. Ltd. Vs. Deepa & ors. MAC.APP. 1042/2016, dated 11.08.2017, wherein a specific question of accident having been caused during the gap period was considered. It was observed that the driver was holding a valid and effective driving license just about two months prior to the date of accident, which reflected that he possessed the necessary skills and had the necessary competence and expertise. There was nothing to show on record that the lacked the skill to drive the vehicle merely because the driving license was not renewed on the date of accident and the absence of validity of the license, contributed to the cause of accident. The decision in Swaran Singh (Supra) has also been followed by a Coordinate Bench of this Court in Mohit Dabas (Supra).
22. Learned counsel appearing on behalf of the Insurance Company has relied upon Apex Court’s decision in Beli Ram Vs. Rajinder Kumar & Anr., Civil Appeal No.7220-21/2011, wherein there was a gap of three years in renewal of the license. It was observed that if the original license had been verified, then certainly the employer would have known when the license had expired. The appellant would thus, bear the responsibility and consequent liability of permitting the driver, who with an expired driving license for over three years, was driving the vehicle in those circumstances. In those circumstances, the Insurance Company was given recovery rights.
23. Each case has its own peculiar facts and whether there was a wilful breach on the part of the insured, is a question to be determined on the facts Digitally of each case, as held in the case of New India Assurance Col. Ltd. Vs. Kamla and Ors. (2001) 4 SCC 342 as well as Pappu and Ors. Vs. Vinod Kumar Lamba and Anr. (2018) 3 SCC 208.
24. Now examining the entire facts of the present case, the appellant No2- Amit Kumar R2W[1], who in his affidavit of evidence by way of affidavit, has deposed that the driver Veer Singh was known to him and it emerges from his testimony that being an agriculturalist, he used to take the tractor from him from time to time for cultivation and agricultural purposes. He also deposed that he had checked his driving license way back in the year 2015 when he handed over the truck to him for the first time and thereafter, he did not check it. It emerges that he had taken due care and caution at the first time when he handed over the tractor to driver Veer Singh and ensured that the driver had a valid driving license.
25. Pertinently, Veer Singh is not an employee nor is he a regular driver, but used to take the truck from the owner from time to time, as per his necessity. The owner had exercised due care and caution at the first time and could not have been expected to check the license every time. It cannot be said that there as any dereliction of due care and caution on the part of the owner who had been handing over the truck from time to time to the driver.
26. Furthermore, it has come in the testimony of R3W[1] Sh. Prakash Chander Pathak, Head Assistant, RTO Office, that the driver was not disqualified in any manner in holding the license nor was his license ever cancelled. Rather, it he renewed it w.e.f. 06.03.2018 i.e. barely after one month of the accident. The terms of the Insurance Policy also provide that the driver should not be disqualified in holding the driving license. It is evident that the driver had the necessary skills and not holding the valid Digitally driving license, contributed in any manner in causing the accident.
27. In similar facts, the Coordinate Bench of this Court in the case of Mohit Dabas (supra) it was specifically held that where non-renewal of the license is a factor for contributing to the cause of accident, it cannot be a ground to allow the recovery rights to the Insurance Company. It was observed that “the skills of the driver were never retested; he was granted renewal by a mere ministerial exercise and not by reassessing his skills. The delay in renewal of his driving licence cannot be held against the driver.”
28. In the present case, there is cogent evidence led on behalf of the owner that he had exercised due care and caution to ensure that the driver had a valid driving license. The driver not being under his regular employment but only a borrower of the Vehicle intermittently, the Appellant/ owner could not have been expected to verify every time to ensure that the driving license was renewed by him within time. Moreover, it has come on record that he was not disqualified nor his license was ever cancelled. Rather, it has been renewed within a gap of an year and half.
29. In the peculiar facts and circumstances of this case, it cannot be said that there was any breach of terms of Insurance Policy committed by the Appellant-Owner, entitling the Insurance Company to have Recovery Rights. It is held that the owner-appellants shall not be liable to reimburse the Insurance Company for the compensation awarded to the claimants.
30. The Appeal is hereby, allowed and accordingly disposed of.
JUDGE NOVEMBER 29, 2024 r Digitally