M/S A G ENVIRO INFRA PROJECTS PVT LTD v. RAVI KUMAR & ORS

1. By the instant appeal, the appellant, who is the owner of the insured vehicle, i.e. truck bearing No.DL-1M 5783 (for short, ‘offending vehicle’), assails the finding returned by the tribunal, whereunder, the liability to pay the compensation awarded on account of motor accident, has come to be fastened on the owner of the offending vehicle, i.e. the appellant. Since the issue agitated in the appeal is limited and hinges on the plea that the driving licence held by the driver of the offending vehicle was not valid or he had possessed a valid licence, the other facts giving rise to the filing of the claim petition under Section 166 of the Motor Vehicles Act, do not invite 2019:DHC:1920 advertence.

2. The tribunal has given the recovery rights to the insurer / respondent no.3-The New India Assurance Company Limited, and, reached to the conclusions on the issue in question, as under:

High Court in MAC.App.476/2011 in case titled as ‘National Insurance Company Ltd. Vs. Sarita Hasija & Ors.’ decided by Hon’ble Justice G.P. Mittal wherein Hon’ble High Court have relied upon its own judgment in case titled as New India Assurance Company Ltd. Vs. Sanjay Kumar & Ors. ILR (2007) 11, Delhi 733 wherein it was held as under:

35. In view of the aforesaid judgments of Hon’ble High Court of Delhi, this court has come to the conclusion that the insurance company is entitled to recovery rights against Respondent nos.[1] and 2 but only after the disbursement of claim to the claimant in terms of the judgment of the Hon’ble Supreme Court in Swaran Singh’s case, 2004 ACJ 1 (SC) (Supra).”

3. Assailing the findings so arrived at by the tribunal, learned counsel for the appellant, strenuously contends that such findings have come to be given by the tribunal ignoring the substantive evidence that had come to be led by the appellant by way of deposition of R2-W[1]. Perusal of the TCR shows that R2-W[1], in his deposition by way of affidavit Ex.R2-W1/1, relevant to the context, deposed as under: “3. That the R[1] was employed as driver after seeing his driving licence and on the face of it nothing was suspicious. A photocopy of the DL was retained by the company and the same is Ex.R2W1/C. The driving test of the R[1] was also taken at that time in which he was found an efficient and good driver.” This witness was cross-examined by the insurer/ respondent no.3 to the following effect: “xxxxxxx by Sh.Surender Singh, Ld. Counsel for Respondent No.3/Insurance Company. The company has not got the DL of R-1 verified. It is correct that as the respondent No.1 knew to drive the vehicle and that is why we did not verify his DL. I cannot say whether the DL of R-1 was fake or not.” The cross-examination so effected, by no means, even suggests that, what was deposed by R2W[1] in the testimony, was either belied or even shaken to the effect that the owner had taken due care to see the driving licence and took the driving test also, at the time of employing the driver. This deposition of R2W[1] has remained unshaken and the ld. counsel for the insurer-the respondent no.3, during the course of hearing, on being queried, concedes that the insurer on its part, did not lead any evidence to rebut such evidence that had come to be adduced on record before tribunal. The tribunal has failed to take notice of such a vital piece of evidence, but, for placing reliance upon a judgment in Sarita Hasija case (Supra), which relates to a case, where, the owner had failed to defend the allegation of breach of the terms and conditions of the insurance policy. Placing reliance on the judgment supra, without adverting to the vital and relevant evidence on record, this court, has no hesitation to say, was wholly perverse. In Swaran Singh’s case (Supra), the Supreme Court has observed that unless the owner of the insured vehicle is found to be in wilful default or breach of the terms and conditions of the insurance policy, the owner cannot be said to have violated the terms and conditions of the insurance policy and thereby, held liable to pay compensation.

4. For the aforegoing reasons, the finding of the tribunal, fixing the liability on the owner-the appellant, cannot be sustained, and is set aside. Consequently, the right of recovery of the award given to the insurer / respondent no.3, from the appellant or the driver, is set aside.

5. Impugned judgment/Award stands modified accordingly. Appeal and the pending application(s) stand disposed off, accordingly.

JUDGE APRIL 03, 2019 ssn