IN THE HIGH COURT OF DELHI AT NEW DELHI MAC APP No. 45/2008 Judgment delivered on: January 23 ,2007 Shri Parvinder Pal Singh & Anr. ..... Appellant. Through: Mr. Ravinder Yadav and Mr.Vinay Mohan Sharma,Advocates versus The Oriental Insurance Co.Ltd. ..... Respondents Through: Nemo. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR, 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes KAILASH GAMBHIR, J. Oral: MAC APP No. 45/2008 page 1 of 5 By way of this appeal, the appellant seeks to challenge the impugned award dated 19.4.2007 whereby the respondent insurance company was directed to deposit the award amount in favour of the claimants and then to recover the same from the appellants. The brief facts for deciding the present appeal inter alia are that on 10.2.97 at about 2.15 p.m. the deceased Shri Kanhai Chaudhary along with his friend was going on the scooter bearing registration no. DL 4 SJ 3064, and when he reached near Bhera Enclave, Paschim Vihar, Delhi, a Matador bearing registration no. DL 1 LA 7461, driven by the driver in rash and negligent manner hit the scooter of the deceased as a result of which the deceased sustained fatal injuries and died on the spot. Counsel for the appellant contends that the Tribunal has wrongly given the recovery rights to the insurer against the legal heirs of the deceased owner of the offending vehicle. The counsel for the appellant contends that as per the case MAC APP No. 45/2008 page 2 of 5 set up by the insurance company one Mr. A.J. Khare was driving the offending vehicle and not Mr. Mahender Singh who was the driver of the offending vehicle. The contention of the counsel for the appellant is that there is no violation at the first instance on the part of the owner of the offending vehicle and even if the violation is assumed due to the unauthorised driving by one Mr. A.J. Khare then the same is not as serious to give recovery rights to the insurer against the legal heirs of the deceased owner. Counsel for the appellant further contends that negligence was also not proved and only challan was exhibited in the evidence. Counsel for the appellant also states that as per the own plea of the insurance company, the accident took place not due to the negligence of the driver of the deceased insured but the negligence of the driver of the scooter bearing registration no. DL 4 SJ 3064. I have heard learned counsel for the appellant and have perused the record. MAC APP No. 45/2008 page 3 of 5 It is an admitted case that Mr. Mohender Singh was the driver employed by the deceased owner of the offending vehicle. As per the testimony of PW-2, it has come on record that one Mr. A.J. Khale (khare) was driving the offending vehicle as trainee under the trainer, Shri Mohender Singh. In his deposition, it has also come on record that the said Mr. A.J. Khare was not holding any learner licence at the time of the accident for which he was challaned also. Once it is not in dispute that the vehicle was handed over for driving to Mr. Mohender Singh who admittedly was not driving but unauthorisedly had been helping Mr. A.J. Khare in driving the said vehicle, then this fact itself shows that there is violation in terms of the insurance policy. I do not find any infirmity in the finding of the Tribunal so far the same gives recovery rights to the insurer to recover the award amount from the legal heirs of the deceased owner of the offending vehicle. On the aspect of the negligence, the Tribunal has MAC APP No. 45/2008 page 4 of 5 relied upon the judgment of this Court in Bala &Ors. Vs. Moti Chand Gupta & Ors. 2003 VIII AD(Delhi) 256 and has reached to the conclusion that the involvement of the offending vehicle in the accident is well shown by the challan which has been proved on record as Ex.PX. The driver of the offending vehicle did not choose to contest the case and was proceeded ex-parte, although, as per the counsel for the appellant he had filed his written statement. In the absence of any other evidence to the contrary, the Tribunal has rightly believed the challan which was proved on record as Ex.PX. I do not find any merit in the present appeal. Dismissed. January 23 , 2007 KAILASH GAMBHIR J. mg MAC APP No. 45/2008 page 5 of 5