HDFC ERGO GENERAL INSURANCE CO. LTD. v. BINDU PASWAN & ANR.

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/W[1] 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:-

6. The presumption of the learned Tribunal that a male who is competent to drive a Light Motor Vehicle (Commercial) could not be expected to be incompetent to drive a two wheeler, is in my view, wholly without any basis. This Court fails to appreciate as to how a person who can drive a four wheeler can be automatically presumed to be competent to drive a two wheeler as well. On the other hand, the skills required for driving a two wheeler are quite different from those required for driving a four wheeler. Driving a two wheeler would require balancing of the vehicle would not at all be relevant for driving a commercial vehicle which is much larger in size. It appears that the learned Trial Court has failed to appreciate that under the Motor Vehicles Act, a Light Motor Vehicle and a two wheeler have been placed in two distinct categories. Merely because respondent no. 2 held a valid licence for a Light Motor Vehicle could not imply that he was authorised or competent to drive a two wheeler.

7. In this regard reference may also be made to the decision of this Court in Bajaj Allianz General Insurance Co. Ltd.(supra) wherein while dealing with a similar issue, the Court held that it could not be assumed that every person who was competent to drive Light Motor Vehicle would be skilled in driving a two wheeler as well. The relevant findings of the Court as contained in para 19 of the decision read as under:-

8. In the light of the aforesaid, it is evident that the offending vehicle, a motor cycle was being driven by a person who did not have a driving licence and therefore, it was a clear case where there was a breach of the terms and conditions of the insurance policy. Consequently, the finding of the learned Tribunal that the appellant was liable to pay the compensation is unsustainable and is set aside. The appeal is, accordingly, allowed by modifying the impugned award to the extent it does not grant any recovery rights in favour of the appellant by directing that the appellant would be entitled to recover the awarded amount from respondent no. 2 in accordance with law.

9. The appeal stands disposed of in the aforesaid terms.

REKHA PALLI, J FEBRUARY 10, 2023