MAC.APP. 32/2006 Page 1 of 6 * THE HIGH COURT OF DELHI AT NEW DELHI CIVIL APPELLATE JURISDICTION + [MAC APPEAL NO. 32 OF 2006] % Decision Delivered on: 05.08.2011 THE NEW INDIA ASSURANCE CO. LTD. … APPELLANT Through: Mr. Pankaj Seth, Advocate VERSUS MRS. ARVINDER KAUR & ORS. … RESPONDENTS Through: None CORAM :- HON’BLE MR. JUSTICE A.K. SIKRI A.K. SIKRI, J. 1. The present appeal assails the order dated 23.08.2005 of Motor Accident Claims Tribunal (hereinafter referred to as the Claims Tribunal), Delhi in case no. 60/2004 where the claims Tribunal has passed an award in the sum of Rs. 8,43,000/- along with interest @ 6% from the date of filing of petition i.e. 31.03.2004. 2. The brief facts of the case are that on 26.11.2003 Shri Upkar Singh received fatal injuries in a road side accident which resulted into his death. The accident took place between his Scooter No.DL-7SQ- 2638 and Mahindra Pick-Up Van No. DL-1L-D-7809 being driven MAC.APP. 32/2006 Page 2 of 6 by Sh. Pradeep Chaudhary (Respondent no.3 before us). The Respondent no 1 and 2 being the wife and mother of the deceased (hereinafter referred to as the claimants) filed a claims petition claiming compensation of Rs.18 lacs on the ground that the accident solely took place due to the rash and negligent driving of Sh. Pradeep Chaudhary (Respondent no. 3 before us). 3. In the claim petition the claimants have impleaded Respondent No.3 and Respondent No. 4 herein as the owner and driver of the Mahindra Pick-Up Van No. DL-1L-D-7809and Appellant insurance company as the insurer of the said vehicle and demanded compensation from them being jointly and severally liable to pay the compensation to the petitioners. The claim petition was contested by the Owner and driver by filing a written statement wherein they denied the negligence on the part of the Driver. The claim petition was also contested by the Appellant insurance Company by filing a written statement wherein it was submitted by the driver at the time of accident was not having a valid and effective driving license and as such the Appellant insurance Company is not liable to pay any amount of compensation. On the pleadings of the Parties the following issues were framed: 1. Whether the deceased received fatal injuries due to rash and negligent driving of vehicle no. DL-1LD-7809 being driven by Respondent No.1? MAC.APP. 32/2006 Page 3 of 6 2. Whether Petitioners are entitled to any compensation? If so of what amount and from whom? 3. Relief. 4. In order to prove their case, the claimants examined three witnesses. PW1 Shri Devender Singh filed salary certificate of the deceased as Ex.PW/A. The petitioner being the wife examined herself as PW2. She filed certified copy of the criminal case as Ex.PW2/A to J. PW3 Raman Saini as an eye witness to the accident. Respondent No. 1 and 2, being the driver and the owner did not lead any evidence. The Appellant Insurance Company led evidence in defense and also examined two witnesses. R3W1 Sh. Desh Raj Singh, UDC, MLO North East Zone. He filed verification report of driving license as Ex.R3W1/A and R3W1/B. R3W2 Sh. Mahender Kumar, A.O filed copy of the policy as Ex.R3W2/A and attested copy of the Registration Certificate of the offending vehicle as R3W2/B. 5. During the proceedings in the claims petition it was contended by the respondents owner and driver that the death of the deceased was a result of rash and negligent driving on the part of the driver Mahindra Pick-Up Van No. DL-1L-D-7809. On this particular issue I find no error in the finding of the Learned tribunal that the onus of proving the same has been completely discharged by the claimants by relying on the testimony of PW3 Sh. Raman Saini, who was an eye witness of the accident. The Claims Tribunal rightly relied upon MAC.APP. 32/2006 Page 4 of 6 Ex.PW2/A, copy of the chargesheet and on Ex.PW2/J the post mortem report which supported the statement of PW3 that the deceased received fatal injuries in the impugned accident. In fact Respondent 3 and 4 have not challenged the award of the Tribunal and only Insurance company has come up in appeal. 6. The only contention of the Appellant Insurance Company is that the Learned Claims Tribunal failed to take into consideration that in view of the law laid down by the Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297, the Appellant Insurance Company after proving that the driver at the time of accident was not holding a valid driving license and there is a breach of warranty condition of the policy on part of the owner of the vehicle, is entitled to recover the amount of compensation so paid by it to the claimants in satisfaction of the award. 7. After a mere perusal of the impugned Award there can be no cavil that insofar the breach of condition of policy of insurance is concerned, the Claims Tribunal held in clear terms that there was a breach of the policy condition on the part of the driver of the offending vehicle. Reliance was placed on the examination of R3W1 Sh. Desh Raj Singh, UDC, Transport Department, (North East) Zone who filed a report of the MLO as Ex.R3W/B, which disclosed the MAC.APP. 32/2006 Page 5 of 6 fact that at the time of accident the driver was holding a valid license only for LMV(NT) and not for Commercial vehicles. 8. In my the opinion the Learned Claims Tribunal, even after holding that there was a breach of policy condition, proceeded on the wrong premise that the Petitioners failed to establish the defence taken by it regarding the offending vehicle being driven in contravention of the policy condition. The Appellant insurance has aptly discharged its burden by examining the two witnesses to prove the breach of policy condition. 9. That apart, what needs to be taken note of is the fact that in light of the pronouncement of the Apex Court in United India Insurance Company Vs. Rakesh Kumar Arora 2008(13) SCALE 35 it is not the Insurance Company which has to prove the breach of condition of the insurance policy, the relevant paragraphs are reproduced below for the purpose of convenience “15. Section 4 of the Motor Vehicles Act prohibits driving of a vehicle by any person under the age of eighteen years in any public place. Section 5 of the Act imposes a statutory responsibility upon the owners of the motor vehicles not to cause or permit any person who does not satisfy the provisions of Sections 3 or 4 to drive the vehicle. 16. The vehicle in question admittedly was being driven by Karan Arora who was aged about fifteen years. The Tribunal, as noticed hereinbefore, in our opinion, rightly MAC.APP. 32/2006 Page 6 of 6 held that Karan Arora did not hold any valid licence on the date of accident, namely 5.2.1997. 17. The learned single Judge as also the Division Bench of the High Court did not put unto themselves a correct question of law. They proceeded on a wrong premise that it was for the Insurance Company to prove breach of conditions of the contract of insurance.” 10. In view of the above mentioned findings the order of the Claims Tribunal is modified to the extent that after the payment of the compensation as decided by the Claims Tribunal the Appellant Insurance Company may undertake appropriate legal proceedings to recover the same from the Respondents driver and owner of the offending vehicle. 11. Accordingly, the present Appeal is partially allowed. A.K. SIKRI (JUDGE) AUGUST 05, 2011 Pk/gv