$~21 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + Judgment delivered on:
12. h February, 2014 MAC.APP. 270/2012 NEW INDIA ASSURANCE CO LTD. .... Appellant Represented by: Mr. Sameer Nandwani, Adv. Versus SURENDER KUMAR SEHGAL & ORS. ..... Respondents Represented by: Mr. P.K. Narang, Adv. for R2 to R5. CORAM: HON'BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J.
(Oral) 1. The present appeal is directed against the impugned award dated 08.12.2011, whereby ld. Tribunal has granted compensation for a sum of Rs.4,85,700/- with interest @ 7.5% per annum from the date of filing of the petition till realization of the amount.
2. Ld. Counsel appearing on behalf of the appellant has argued the instant appeal on the ground that the driver of the offending vehicle was holding fake driving licence on the date of accident. In such eventuality, Ld. Tribunal ought to have exonerated the appellant from any liability. However, Ld. Tribunal has fastened the appellant / insurance company with liability and granted recovery right against respondent nos. 6 & 7, i.e., the driver and owner of the offending vehicle.
3. Ld. Counsel for the appellant further argued that the claimants failed to prove the permanent employment of the deceased. Despite that Ld. Tribunal has added future prospects in the income of the deceased while awarding the compensation which is contrary to the dictum of Sarla Verma Vs. DTC and Ors. 2009 (6) SCC121further affirmed by the Apex Court in the case of Reshma Kumari and Ors. Vs. Madan Mohan & Anr. (2013) 9 SCC65 4. As far as the issue of fake driving licence, no driving licence and invalid driving licence is concerned, this issue has been dealt with by this court in the case of Santosh Chabra and Ors. v. Abhishek Gureja and Ors. MAC.A8052010 decided on 04.10.2013, wherein this court held as under:
“21. Law is settled on the issue of no licence, fake licence or invalid driving licence in the case of New India Insurance Company Ltd. v. Darshana Devi 2008 ACJ1388 The offending vehicle at the time of accident was being driven by son of the owner of the vehicle, who was not holding any licence to drive the same. Ld. Tribunal, while awarding the compensation held that the amount shall be payable by the insurer initially, however, the insurer will be at liberty to recover the same from the owner of the offending vehicle. The award passed by ld. Tribunal was challenged by the Insurance Company, same was affirmed by the High Court and also upheld by the Supreme Court.
22. In New India Assurance Co. Ltd. v. Kamla and Ors. etc. 2001 ACJ843 wherein it is held as under:
“The position can be summed up thus: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence..”
23. In National Insurance Co. Ltd. v. Swarn Singh, 2004 ACJ1while deciding the issue of driving licence, the Apex Court has held as under:
“(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them. In V. Mepherson vs. Shiv Charan Singh [1998 ACJ601(Del.)]., the the owner of the vehicle was held not to be guilty of violating the condition of policy by willfully permitting his son to drive the car who had no driving licence at the time of accident. In that case, it was held that the owner and insurer both were jointly and severally liable.”
24. In Oriental Insurance Co. Ltd. v. Rakesh Kumar & Ors., 2012, ACJ, 1268, the Coordinate Bench of this court in Para 44 has held as under:
“44. (ii) Even when there is a willful breach of the terms of the policy under Section 149(2)(a) of the Act, the Insurance Company is under obligation to indemnify the liability towards the third parties and recover the same from the owner. (iii) Once the Insured proves that the driver did not hold any driving licence to drive the Class of vehicle involved in the accident or that the driving licence was fake; requires the owner and driver to produce the driving licence and if they failed to produce the same, the onus of proving breach of policy would be deemed to be discharged. Onus would then shift on the owner to establish that he was not guilty of breach of the terms of policy. In the absence of any evidence being produced by the Insured, in such cases, it will be presumed that he was guilty of a willful breach. The Insured in such cases, would be entitled to recover the compensation paid to third party in discharge of its statutory liability. (iv) Where policy is avoided on proof or facts which renders the Insurance policy void under Section 149(2) (b) of the Act, the Insurance Company would not be under obligation to pay even to third parties, as in such cases the contract of insurance is non est.”
25. No doubt, the respondent No.3 / insurance company successfully proved that there was breach of terms and conditions of the policy, mere breach of the conditions of the policy would not entitle the insurance company to avoid its liability against the insured.”
5. Admittedly, recovery rights have been granted in favour of the appellant and against respondent nos. 6 & 7, i.e., the driver and owner of the offending vehicle. Therefore, I do not find any merit on this issue.
6. As the issue of future prospects is concerned, it has been considered by this court in the case bearing MACA No.846/2011 titled as ‘ICICI Lombard Channel Insurance Co. Ltd. Vs. Angrej Singh & Ors.,’ decided on 30.09.2013 while relying upon the dictum of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013 (6) SCALE563 7. In the present case the age of the deceased was 28 years on the date of accident. He was working as a Manager at JMD, Karawal Nagar and was drawing a salary of Rs.3,000/- per month. This fact has been proved by the testimony of PW1 Sh. Sanjay Sehgal, who deposed that deceased was working as a Manager in his sole Proprietorship. The salary certificate has been proved as Ex.PW1/A. Therefore, I am of the considered opinion that keeping the age of the deceased into view, Ld. Tribunal has rightly added 50% in his income towards future prospects while calculating the compensation.
8. In view of above discussion, I do not find any merit in the instant appeal. Same is accordingly dismissed.
9. The statutory amount be released in favour of the appellant.
10. The balance compensation amount be released in favour of the respondents / claimants. CM. No.4756/2012 With the dismissal of the instant appeal itself, instant application has become infructuous and dismissed as such. SURESH KAIT, J FEBRUARY12 2014/jg/RS