Future Generalli India Ins Co Ltd v. Vipin Sharma @Bipin @ Vipin & ORS

$~4 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 4th April, 2016 + MAC.APP. 261/2011 & CM No. 5841/2011 FUTURE GENERAL INSURANCE CO. LTD.

..... Appellant Through:

Ms. Shantha Devi Raman, Adv.

versus SH. VIPIN SHARMA@ BIPIN @ VIPIN & ORS ..... Respondents Through:

Mr. Satish Bajaj, Adv. for R-1 & 2.

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

R.K.GAUBA, J (ORAL):

1.

By judgment dated 09.02.2011, the motor accident claims tribunal (tribunal) decided the accident claim case registered as Suit No. 445/2009 which had been filed by the respondent (claimant) on 19.11.2009 seeking compensation for injuries suffered by him due to motor vehicular accident that had occurred on 25.06.2009 allegedly on account of rash driving by the second respondent (the driver) of Indica car/taxi bearing registration No. DL IRY 1013 (the offending vehicle), concededly owned by the third respondent (owner/insured) and insured against third party risk for the period in question with the appellant insurance company (insurer). 2.

The tribunal upheld the contention of rash driving, assessed the compensation in the sum of ₹ 3,99,904/- and directed the insurer to satisfy the award with interest.

3.

The insurer had contested the claim petition, inter alia, on the grounds MAC APP. No261/2011 Page 1 of 3

that there was breach of terms and conditions of the insurance policy as the driving license No. F99999 purportedly issued by transport Authority, Faridabad (page 347 of the tribunal's record), as submitted with accident information report (AIR) by the Station House Officer of police station Timarpur, with reference to the investigation of the first information report (FIR) No.108/2009 had been found to be a fake document. The tribunal, however, did not uphold the said contention and fastened the liability on the insurer to pay.

4.

The appeal is pressed only on the ground that the plea of breach of terms and conditions of the insurance policy for the reason that the driving license, upon verification, was found to be a fake document, should have been accepted and at least recovery rights should be granted against the insured/owner of the offending vehicle.

5.

Having heard the counsel for both sides, this Court finds the appeal to be unmerited. The police during the investigation into the FIR registered in the matter, had gathered a copy of the driving license purportedly issued by the transport authority, Faridabad. It does appear that the said document was a fake and forged document. This is confirmed by the statement of Deep Chand (R3W1), clerk from the office of SDM, Faridabad. The owner, however, led evidence by examining its director Gurvinder Singh (R2W1) on the strength of his affidavit (R2W1/A) to affirm on oath that the driving license had been checked at the time of the driver being engaged and since it appeared to be genuine and the driver had undergone a driving test to satisfy the employer as to his capability to drive the motor vehicle, due diligence had been exercised. This evidence of R2W1 was not challenged by effective cross-examination.

MAC APP. No261/2011 Page 2 of 3

6.

In National Insurance Company V. Swaran Singh (2004) 3 SCC 297, the Supreme Court observed as under:- "Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act."

7.

In above facts and circumstances, the insurer has failed to prove any fundamental breach. Therefore, the appeal is unmerited and is liable to be dismissed.

8.

By order dated 22.03.2011, the insurer had been directed to deposit the entire awarded compensation with upto date interest with the Registrar General within the period specified, and the same was released to the claimant. Thus, no further directions are required. 9.

The appeal is dismissed.

10.

Statutory deposit, if made, shall be refunded. R.K. GAUBA (JUDGE) APRIL 04, 2016 nk MAC APP. No261/2011 Page 3 of 3