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Delhi High Court

Mahender Singh Rawat & Anr vs Ram Kishan & Anr on 17 November, 2014

Author: Jayant Nath

Bench: Jayant Nath

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of Decision: 17.11.2014
+    MAC.APP. 564/2010
     MAHENDER SINGH RAWAT & ANR                  ..... Appellants
                      Through Mr. Rajat Joseph, Advocate
               versus
     RAM KISHAN & ANR                            ..... Respondents
                      Through Mr. Raj Kumar, Advocate for R1
                              Ms. Suman Bagga, Advocate for R2

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. The present appeal has been filed seeking to impugn the Award dated 10.03.2010. Brief facts giving rise to the filing of the claim petition are that the claimant along with his colleague Kamlesh Kumar was going on foot on the pavement to see a fair in Nehru Stadium. When they reached near Pragati Vihar Hostel, the claimant was hit by a motorcycle said to be driven by appellant No.1. The claimant/respondent No.1 suffered injuries.

2. Based on the evidence on record, the tribunal awarded compensation of Rs.98,200/- to respondent No.1. The liability has been fastened upon the appellants namely the owner and driver of the vehicle. A perusal of the Award shows that tribunal noted that the appellant No.1 was minor and was driving the motorcycle without a driving licence. It rejected the contention of appellant No.2 that the motorcycle was taken behind his back and without his consent or knowledge and hence he would not be liable.

3. Learned counsel appearing for the appellant has vehemently argued that the appellant No.2 is not liable as appellant No.1 had, without MAC.APP. 564/2010 Page 1 of 3 consent of the owner of the motorcycle i.e., appellant No.2, taken the keys of the motorcycle and gone out. Hence, it is urged relying upon the judgment of the Supreme Court in the case of National Insurance Company Ltd v. Swaran Singh & Ors. (2004) 3 SCC 297 that the onus was on the insurance company to show that there was a wilful violation of the law by the insured which onus is not discharged.

4. In my opinion there is no reason to differ with the view of the tribunal. This Court in a recent judgment dated 14.10.2014 in the case MAC Appl No.339/2005 in the case of National Insurance Company Ltd. v. Sanjay Singharia & Ors. relied upon the judgments of the Supreme Court in the case of Jawahar Singh v. Bala Jain & Others, AIR 2011 SC 2436 and United India Insurance Co.Ltd. v. Rakesh Kumar Arora & Othes, (2008) 13 SCC 298 to hold that where a minor is driving a vehicle without a licence there is a breach of the terms and conditions of the insurance policy. This Court had noted the case of Jawahar Singh vs. Bala Jain (supra). This was a case where the motorcycle was driven by one Jatin. As per the owner of the motorcycle, the said Jatin, his nephew had taken the motorcycle without his knowledge and consent and had taken the keys of the motorcycle without his permission. The said Jatin did not even have a valid licence and he was a minor at the time of accident. The Supreme Court upheld the liability settled down on the owner of the motorcycle.

5. Section 3 provides that no person should drive a motor vehicle in public unless he holds a valid driving licence.

6. R2W2, Arjun Singh Rawat-appellant No.2 in his evidence by way of affidavit has said that he had not allowed appellant No.1 to drive the motorcycle and that appellant No.1 in his absence without his knowledge or consent or permission took the keys of the motorcycle and drove the same on the date of the accident.

7. In his cross examination, he confirmed that he has not lodged the report to the police and he is his neighbour and has visiting terms. The evidence inspires no confidence. If a neighbour has taken away the motorcycle without consent of appellant No.2 and then cause damages and injury based on a wrongly driven motorcycle, it is difficult to believe that a neighbour could have lodged an FIR. It is in fact noteworthy that the present appeal is filed jointly by the two namely, the owner and driver of the offending motorcycle. There are no reasons to interfere with the Award. The present appeal is dismissed. The appellant may comply with the Award within 60 days from today.

8. As per the interim order dated 27.08.2010, the appellant has already deposited 50% of the award amount with the Registrar General of this Court. The said interim order/stay is vacated and the amount be released to the claimant i.e. respondent No.1. The balance of the award amount with accumulated interest be deposited by the appellant within 60 days from today. On deposit of the amount, the same should also be released to respondent No.1. The statutory amount has been included in 50% amount deposited by the appellant.

NOVEMBER 17, 2014                                   JAYANT NATH, J
'raj'

MAC.APP. 564/2010                                   Page 3 of 3