MAC.APP./373/2009 of CHANDER SHEKHAR DIVEDI Vs THE ORIENTAL INS. CO. & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 1[st] December,, 2011 Pronounced on: 14[th] December, 2011

+ MAC. APP. 373/2009

CHANDER SHEKHAR DIVEDI Through: Mr. Achal Chhabra, Adv.

..... Appellant

Versus

THE ORIENTAL INS. CO. & ORS.

..... Respondents Through: Ms. Manjusha Wadhawa with Ms. Angana Goswami, Advocates for R-1.

CORAM:

HON'BLE MR. JUSTICE G.P.MITTAL

G. P. MITTAL, J.

J U M N T

1.This Appeal is directed against the award dated 15.09.2006 passed by the Motor Accident Claims Tribunal (the Tribunal) whereby compensation of ` 1,78,509/- was awarded in favour of the Claimants i.e. Respondents No.3 to 5 before the Tribunal. The Tribunal made the Appellant liable to pay the compensation. It directed Respondent No.1 the Oriental Insurance Co. Ltd. to pay the compensation in the first instance with right to recover it from the Appellant on the ground that the Appellant was the registered owner of the vehicle. It was held that the driver of the offending vehicle Pappu Singh did not possess valid driving licence on the date of the accident i.e. 16.10.2002. The Claimants before the Tribunal (Respondents

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No.2 to 4 and the driver Respondent No.5) have not been impleaded in this appeal.

The Appellant is aggrieved by the impugned order on the ground that as he had transferred the vehicle admittedly in favour of Respondent No.2 (Harlal Sharma) he could not have been fastened with the liability. Respondent No.2 Harlal Sharma did not dispute before the Tribunal that he had purchased vehicle No.DL-1VA-2362 on 24.09.2002 on the basis of an agreement to sell. Thus, even if it is assumed that the driver Pappu Singh did not hold valid driving licence on the date of the accident and the Insurance Co. had successfully proved that there was intentional breach of the terms of the insurance policy by the insured i.e. Appellant herein. As he had transferred the offending vehicle in favour of Respondent No.2 (herein) he also had the right of recovery against Respondent No.2 if Insurance Co. recovered the awarded compensation from the Appellant.

While perusing the Trial Court record very intriguing aspect has been discovered. The Appellant (herein) being the registered owner did not contest the proceedings after he had transferred the offending vehicle in favour of Harlal Sharma (Respondent No.2 herein). It seems that the conduct of the case on behalf of the Respondent No.2 was equally negligent because in view of the specific evidence in the shape of RW-2 Shri Makhan Singh’s testimony it could not have been said that

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Pappu Singh, the driver of the offending vehicle did not possess valid driving licence to drive the Mini Bus. I would extract RW-2’s testimony hereunder for the sake of convenience: -

“I have brought the original driving licence

register regarding the driving licence No.N-982/MTR/99 issued in the name of Pappu Singh S/o. Ved Pal, R/o Krishna Ngr, Mathura. The said licence was dt. 28.12.99 issued for motorcycle plus LMV private and endorsement of HTV PE dt. 3.1.01. The validity of th licence is from 3.1.04 to 2.1.07.

xxx by counsel for petnr.

Nil (opportunity given).

xxx by counsel for insurance company

I have seen the original licence issued in the name of Pappu Singh. Copy of the same is Ex. RW-2/X-1. It is wrong to suggest that this licence was not issued from our office or that it was not for LMV and HTVP. It is wrong that on 16.10.02 the licence was not valid.”

It is important to note that RW-2 was specific that the licence

No.N-982/MTR/99 was issued in the name of Pappu Singh, S/o. Ved Pal, R/o. Krishna Nagar, Mathura for Motorcycle and LMV on 28.12.1999. An endorsement to drive HTV was made on 03.01.2001. As per Section 14 (2) (a) of the Motor Vehicles Act licence to drive the transport vehicle shall be effective for period of 3 years. Thus it would be seen that the endorsement, which was made on 03.01.2001 was valid up to 02.01.2004. The licence was again renewed w. e. f. 03.01.2004 up to 02.01.2007. It is thus clear that the licence was valid on 16.10.2002 to drive Mini Bus. perusal of the cross-

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examination of RW-2 Makhan Singh on behalf of the Insurance Company would disclose that suggestion was given to him that the licence was not valid on 16.10.2002 which was denied by him. Though, the Tribunal noticed the testimony of RW-2 Makhan Singh yet it fell into error in observing that the licence was valid only for the period 03.01.2004 to 02.01.2007. The onus was on the Insurance Co. to show that the licence was not valid on the date of the accident i.e. 16.10.2002 [National Insurance Co. Ltd. v. Swaran Singh & Ors., (2004) 3 SCC 297].

The Insurance Co. has failed to discharge the onus to prove that the licence was not valid on 16.10.2002. Rather, there is ample evidence to show that Pappu Singh driver of the Mini Bus had an effective and valid licence on 16.10.2002. The Insurance Co. could not have been granted recovery rights against the Appellant.

6.The appeal is accordingly allowed and the impugned award is set-aside to the extent that it grants recovery right to the Respondent No.2.

7.The appeal is allowed in above terms. No costs.

DECEMBER 14, 2011

(G.P. MITTAL) JUDGE

MAC APP 373/2009