$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + Judgment delivered on:
6. h March, 2014 MAC.APP. 337/2007 NEW INDIA ASSURANCE CO.LTD. ..... Appellant Represented by: Mr. D. K. Sharma, Adv. versus HARJEET SINGH & ORS. ..... Respondents Represented by: Ms. Manjeet Chawla and Ms. Sunan Roy, Advs. CORAM: HON’BLE MR. JUSTICE SURESH KAIT SURESH KAIT, J.
(Oral) 1. The present appeal has been preferred against the impugned award dated 05.03.1007, whereby Ld. Tribunal has awarded compensation for an amount of Rs.60,000/- with interest @ 7% per annum from the date of filing of the petition till realization of the amount.
2. Ld. Counsel appearing on behalf of the appellant submits that driver of the offending vehicle was not having any driving licence and in such eventuality, Ld. Tribunal ought to have exonerated the appellant from any liability. However, directed the appellant to pay the compensation amount in favour of the claimant with recovery rights against the driver and owner of the offending vehicle.
3. The issue of invalid licence, fake licence or no licence has been decided by this court in the case of Santosh Chhabra & Ors. v. Abhishek Gureja & Ors. in MAC. APP. 805/2010 decided on 04.10.2013 wherein it is 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.”
4. Admittedly, in the present case, recovery rights have been granted in favour of the appellant.
5. In view of the decision taken by this court in the Santosh Chhabra (Supra), I do not find any merit in the instant appeal.
6. Accordingly the same is dismissed.
7. Statutory amount be released in favour of the appellant and the balance compensation amount, if any, be released in favour of the respondent / claimant on taking steps by him. CM. No.7789/2007 With the dismissal of the instant appeal, instant application has become infructuous and disposed of as such. SURESH KAIT, J MARCH06 2014 jg