HDFC ERGO GEN. INSURANCE CO. LTD v. JAMEELA BEGUM & ORS.

1. In the inquiry arising out of claim petition under Sections 166 and 140 of Motor Vehicles Act presented by the first and second respondents herein, registered as Suit No. 63/11 by the motor accident claims tribunal (the tribunal) the insurance company (the third respondent before the tribunal) in appeal though admitting the insurance policy inrespect ofthe offending vehicle bearing registration No. HR 47 B 6778 covering the relevant period took the defence that there was a breach ofpolicy conditions inasmuch as the driver (the third respondent herein) did not have avalid and effective driving license. Its contention was rejected by the tribunal'even though ithad led evidence to affirm the said defence through Mr. Abhishek Kushwaha, R3W[1], Assistant Manager and Mr. Hari Om, R3W[2] the investigating officer. MAC.APPNo.565/2QB Page I of[3] 2016:DHC:8823

2. The insurance company feeling aggrieved has come up to this Court questioning the propriety and correctness of the reasoning on the basis of which the tribunal rejected the aforementioned contention holding it to have failed to establish deliberate or wilful breach of the insurance policy, even though no positive evidence was adduced by the driver (the third respondent herein) or the insurer (the fourth respondent herein) to prove that the former (the third respondent) did have a valid driving license.

3. The notice of the appeal at hand was issued by order 05.07.2013 ^ only to the third and fourth respondents who have appeared, through counsel, to contest. During the hearing on the appeal, the learned counsel representing the third and fourth respondents, as a!foresaid, submitted that the driver (the third respondent) did have a valid driving license but for some reasons evidence to this effect could not be brought on record duringthe inquiry. Request is now made for fresh opportunity to be given to prove the said fact. It is argued that the reports and evidence of R3W[1] and R3W[2] to the effect that the driving license shown to the investigating officer of the police case was found to be forged was based on insufficient inquiry.

4. Against the above backdrop, both sides fairly agree through their counsel that the inquiry as to whether the driver was holding a valid and effective driving license be remitted for fresh opportunity particularly to the driver and owner ofthe vehicle to be given for bringing in positive evidence in affirmation of the aforementioned claim, and thereafter the question be determined afresh. The insurance company submits through counsel that ithas already satisfied the award in favour ofthe claimants. It is agreed by both sides that in case the driver and owner fail to prove MAC.APPNo.565/2013 u r. Page 2 of[3] v\' that the former was holding a valid driving license, the insurance company would be entitled to recovery rights.

5. Thus, the impugned judgment, to the extent it negatived the claim of the insurance to above effect is set aside. The short issue, as mentioned above is remitted to the tribunal for fresh inquiry and adjudication. Given the position taken by the third and fourth respondents herein, the prime burden of proving the existence of a valid and effective driving license would be that of said parties, i.e. the third and fourth respondents.

6. The parties are directed to appear before the tribunal for aforementioned purposes on 29"^ March, 2016.

7. Needless to add, given the narrow area of controversy, the tribunal will hold expeditious proceedings and make all endeavour that this inquiry be completedwithin four months ofthis order, as above.

8. Statutory deposit, ifmade, shall be refunded. R.K. Gj (JUDGE) FEBRUARY 01, 2016 nk MAC.APP No.565/2013 Page 3 of[3] I