Delhi District Court
Mohd. Khalid vs Sh. Dharamveer (Driver) on 31 May, 2012
IN THE COURT OF SH. ARUN BHARDWAJ
PRESIDING OFFICER: MOTOR ACCIDENTS CLAIMS
TRIBUNALII, DWARKA COURTS, NEW DELHI
MACT NO. 153/12/09
IN THE MATTER OF :
1. Mohd. Khalid
S/o Sh. Umed Ali
R/o G221, Qutub Vihar
Jhankar Road, Gali No. 4
Near Apna Bazar
New Delhi110071.
......Petitioner
Versus
1. Sh. Dharamveer (Driver)
S/o Sh. Hawan Singh
R/o Village Jindran
P.O. Rahadwali
P.S. Teh. & Distt. Rohtak (Haryana)
2. Mr. Jaiveer Singh (Owner)
S/o Sh. Paras Ram
R/o Village & P.O. Makroli Kalan
Distt. Rohtak (Haryana)
3. United India Insurance Company Ltd. (Insurer)
8th Floor, Kanchanjunga Building
18, Barakhamba Road
Connaught Place, New Delhi1.
.........Respondents
Mohd. Khalid v. Dharamveer & Ors. Page 1 of 22
MACT NO. 154/12/09 IN THE MATTER OF :
1. Afsar Ali S/o Sh. Rafik Ahmad R/o G245, Qutub Vihar, PhaseI Jhankar Road, Gali No. 4 Near Apna Bazar New Delhi110071.
......Petitioner Versus
1. Sh. Dharamveer (Driver) S/o Sh. Hawan Singh R/o Village Jindran P.O. Rahadwali P.S. Teh. & Distt. Rohtak (Haryana)
2. Mr. Jaiveer Singh (Owner) S/o Sh. Paras Ram R/o Village & P.O. Makroli Kalan Distt. Rohtak (Haryana)
3. United India Insurance Company Ltd. (Insurer) 8th Floor, Kanchanjunga Building 18, Barakhamba Road Connaught Place, New Delhi1.
.........Respondents
FILED ON : 24.10.2009
RESERVED ON : 15.05.2012
DECIDED ON : 31.05.2012
: J U D G M E N T :
Mohd. Khalid v. Dharamveer & Ors. Page 2 of 22
1. These are two claim petitions filed under Section 166 and 140 of the Motor Vehicles Act, 1988 for grant of compensation.
2. Respondent no. 1 is the driver, Respondent no. 2 is the owner and Respondent no. 3 is the insurer of the offending vehicle.
3. Facts in the claim petition of Sh. Mohd. Khalid are that on 21.03.09 at about 6.00 a.m. he was going on his two wheeler scooter bearing registration no. DL9SG3584 for his duty at IGI Airport from his residence and Sh. Afsar Ali was pillion rider.
4. It is stated that petitioner was driving the scooter at a slow speed, on correct left side of the road and was observing all the traffic rules.
5. It is stated that when the injured/petitioner reached at Main Road, IGI Airport, near Centaur Hotel red light and was crossing the road breaker, suddenly a truck bearing no. HR46 B7087 which was being driven by its driver/respondent no. 1 at a very high speed, rashly, negligently without blowing any horn in contravention of the traffic rules came from behind and hit the scooter of the petitioner with a great force.
6. It is stated that with this sudden and forceful impact, the injured/petitioner alongwith two wheeler scooter and pillion rider Sh. Afsar Ali fell down on the road and sustained multiple grievous injuries on his body.
Mohd. Khalid v. Dharamveer & Ors. Page 3 of 22
7. It is stated that the injured/petitioner and Sh. Afsar Ali were removed to Indian Spinal Injuries Centre, Vasant Kunj, New Delhi where the injuries sustained in the accident resulted in permanent disability.
8. It is also stated that FIR No. 126/09 is registered against respondent no.1 in P.S. IGI Airport under Section 279 and 338 of IPC.
9. Petitioner has stated that he was working as Loader Incharge in Cambata Aviation Pvt. Ltd. IGI Airport, TerminalII, New Delhi and was drawing a salary of Rs. 14,500/ per month.
10. In these circumstances, petitioner has claimed a compensation of Rs. 40 lacs from the respondents.
11. Respondent no. 1 and 2 have filed a common written statement. They have stated that the accident took place due to negligence of the petitioner. They have denied that respondent no. 1 was driving the vehicle rashly or negligently. They have stated that the vehicle was insured by respondent no. 3.
12. Insurance company has also filed its written statement and has stated that the insured must prove that the driver of the vehicle in question was having valid and affective driving license, permit and fitness on the date of accident to drive the vehicle in question. It is admitted that the vehicle was insured vide policy no. Mohd. Khalid v. Dharamveer & Ors. Page 4 of 22 111200/31/08/01/00000818 in the name of Sh. Jaibir Singh, respondent no. 2 for a period from 16.05.08 to 15.05.09 in respect of vehicle no. HR46B7087.
13. Rest of the averments made in the claim petition were denied.
14. In the claim petition of Afsar Ali, similar facts are mentioned as are mentioned in the claim petition of Sh. Mohd. Khalid. He has also stated that his salary was Rs. 14,500/ per month being a loader.
15. Written statements of respondents in the case of Afsar Ali are also same as in the case of Mohd. Khalid.
16. Vide orders dated 16.04.10, considering that both these petitions are arising out of the same accident, the two were consolidated and following consolidated issues were framed:
1) Whether Mohd. Khalid of MACT petition no. 946/09 and Afsar Ali of MACT petition no.
950/09 had sustained injuries on their person in an accident which took place on 21.03.2009 due to negligent driving of vehicle bearing registration no. HR46B7087 being driven in a negligent manner by R1, owned by R2 & insured with R3?
OPP
2) In case, issue no. 1 is decided in favour of the petitioners, to what amount of compensation he is entitled to and from whom? OPP
3) Relief.
Mohd. Khalid v. Dharamveer & Ors. Page 5 of 22
17. First witness examined on behalf of petitioners was Sh. Pramod Kumar, Supervisor (Accounts) of Combata Aviation Pvt. Ltd. who proved as Ex. PW1/A salary slip of Mohd. Khalid for the month of February, 09. He stated that Mohd. Khalid has been working in the company since 20.06.96. The witness also produced salary slip in respect of Afsar Ali for the month of February, 09 which was exhibited Ex. PW1/B and stated that he is also in the employment of the said company since 20.01.97.
18. Perusal of salary vouchers revealed that designation of Sh. Mohd. Khalid is shown as UHCATII and his gross salary was Rs. 20,071/ which included conveyance of Rs. 1750/, meal allowance of Rs. 760/. From the salary, income tax of Rs. 1538/ was also deducted per month and net salary after deduction of tea fund and VPF was Rs. 16,368/.
19. So far as salary slip of Afsar Ali is concerned, his basic salary was Rs. 19,726/ where conveyance Rs. 1750/ and meal allowance of Rs. 760/ was included. From this gross salary, income tax of Rs. 1596/ was deducted and deduction was also made for tea fund and VPF and net salary of the claimant was Rs. 16,080/ per month.
20. PW1 also produced leave record of Mohd. Khalid which was exhibited as Ex. PW1/C. As per this witness Mohd. Khalid had Mohd. Khalid v. Dharamveer & Ors. Page 6 of 22 remained on leave from 18.03.09 to 11.11.09 and this leave was without pay.
21. He further stated that Sh. Mohd. Khalid had remained on leave from 12.11.09 to 24.11.09 on Privilege Leave (Earned Leave).
22. He also produced leave record of Sh. Afsar Ali which was exhibited as Ex. PW1/D and as per this the petitioner had remained on leave from 21.03.09 to 17.11.09 and this leave was Without Pay.
23. In cross examination, he stated that the employer company had extended medical benefits to these employees as company has taken a Group Health Insurance Scheme for this purpose.
24. Second witness examined on behalf of petitioners was PW2 Dr. S.K. Sharma of DDU Hospital, Delhi. He deposed that Sh. Mohd. Khalid has suffered permanent disability to the extent of 29% in relation to right lower limb due to post fracture scarring of right leg with stiffness of right ankle joint and reduction of knee movements.
25. The disability certificate was proved as Ex. PW2/A. PW2 further stated that Sh. Afsar Ali had sustained permanent disability to the extent of 28% in relation to right lower limb due to post traumatic stiffness and scarring of right ankle. Disability certificate given to Sh. Afsar Ali was exhibited as Ex. PW2/B. Mohd. Khalid v. Dharamveer & Ors. Page 7 of 22
26. In cross examination this witness stated that the disability is only with regard to a particular limb and there are no prescribed guidelines for ascertaining the effect of this disability on the whole body. He further stated that disability if considered for the whole body, the same would definitely be less than the disability mentioned in the certificates in relation to a particular limb. He stated that the disabilities are permanent in nature and there are negligible chances of petitioners recovering from the same.
27. Third witness examined on behalf of petitioners was Billing Incharge of Indian Spinal Injury Center, Sh. Harish. This witness deposed that Mohd. Khalid had remained admitted in their Hospital from 21.03.09 to 28.04.09 and his admission, treatment and discharge summary alongwith the MLC and bills by the Hospital Authorities for the treatment administered to him were exhibited as Ex. PW3/A.
28. In cross examination, he stated that the payment against the bills raised by Hospital Authorities was made by M/s. Combata Aviation Pvt. Ltd.
29. Fourth witness who entered in the witness box was Mohd. Khalid, PW4. Bills of treatment were exhibited as Ex. PW4/1, educational qualification certificates as Ex. PW4/23 and ration card as Ex. PW4/4.
Mohd. Khalid v. Dharamveer & Ors. Page 8 of 22
30. In cross examination, he admitted that the expenses incurred on his treatment in the Hospital were directly paid to the Hospital Authorities by his company M/s. Combata Aviation Pvt. Ltd. He stated that whatever medical bills and prescriptions he had with him have been placed on record alongwith his affidavit and some of the bills and prescriptions were misplaced. Suggestions contrary to his case were denied by him.
31. Fifth witness examined in this case was Sh. Afsar Ali as PW5. Bills of purchase of medicines etc. were exhibited as Ex. PW5/1, educational qualification certificates as Ex. PW5/2 and ration card as Ex. PW5/3.
32. PW6 was again Medical Record Incharge of Indian Spinal Injuries Center, Sh. Rakesh Kumar who produced admission, treatment and discharge record alongwith MLC and bills raised by Hospital for the treatment administered to Sh. Afsar Ali as Ex. PW6/A. He stated that Sh. Afsar Ali had remained admitted in the Hospital from 21.03.09 to 17.04.09.
33. In cross examination, PW6 replied that payment against the bill raised by the Hospital was paid by M/s. Combata Aviation Pvt. Ltd. and patient had not made any payment against the bill raised by the Hospital Authorities.
34. On behalf of insurance company, its Dy. Manager Sh. Mohd. Khalid v. Dharamveer & Ors. Page 9 of 22
Jagdish Narang entered in the witness box as R3W1. Computerised copy of the insurance policy in respect of truck bearing no. HR46B7087 was exhibited as Ex. R3W1/1, the license verification report received from Licensing Authority, Agra was proved as Ex. R3W1/2BD, notice issued to driver and owner of the insured vehicle under Order 12 Rule 8 of CPC was exhibited as Ex. R3W1/3, postal receipts and UPC as per which this notice was sent were proved as Ex. R3W1/46 and AD card received by respondent no. 1 was proved as Ex. R3W1/7.
35. Second witness examined by insurance company was its Investigator. Letter dated 04.12.09 appointing the Investigator alongwith copy of driving license given to Investigator were exhibited as Ex. R3W22A and letter given by Investigator to insurance company was exhibited as Ex. R3W2/3.
36. Last witness examined in this claim petition was Sh. Harish Khatri, UDC Licensing Authority, Mathura, as R3W3. He stated that as per records of Licensing Authority, Agra vide entry no. 1201/Agra/01 dated 28.03.01 a license was issued to Sh. Vivek Sharma and not to Sh. Dharamveer who is respondent no. 1 in this claim petition. Report signed by Licensing Authority in this regard was exhibited as Ex. R3W3/1. He identified signatures of ARTO as he had seen him signing during the course of his employment. Mohd. Khalid v. Dharamveer & Ors. Page 10 of 22 Extract from the register of Licenses from 846 to 1201 where particulars of Sh. Vivek Sharma are recorded in place of Sh. Dharamveer was exhibited as Ex. R3W3/4. He stated that driving license propounded of Sh. Dharamveer is fake and not issued by the Licensing Authority, Agra.
37. Arguments were addressed by Sh. A.C. Jha, learned Counsel for petitioner and Sh. Vikas Sharma, learned Counsel for insurance company. None came to address arguments for respondent no. 1 and 2 who were proceeded exparte.
38. On the basis of pleadings of parties, evidence on record and arguments addressed, issuewise findings are as under: ISSUE NO. 1
39. Burden of proving this issue is on the petitioner.
40. For succeeding in a claim petition under Motor Vehicles Act, it is for the petitioner to prove that the vehicle which caused the accident was being driven rashly and negligently by its driver.
41. This is sine qua non for getting the relief.
42. It is the say of petitioners that on 21.03.09 at about 6.00 a.m. Sh. Mohd. Khalid was driving a two wheeler scooter bearing no. DL9SG3584 where Sh. Afsar Ali was a pillion rider and at main road, IGI Airport near Centaur Hotel red light while he was crossing the road breaker, suddenly a truck bearing no. HR46B7087 which Mohd. Khalid v. Dharamveer & Ors. Page 11 of 22 was being driven by its driver/respondent no. 1 at a very high speed, rashly, negligently without blowing any horn in contravention of the traffic rules came from behind and hit the two wheeler scooter alongwith injured/petitioner and Sh. Afsar Ali with a great force resulting in grievous injuries.
43. Respondent no. 1 and 2 have filed written statement and denied that respondent no. 1 was driving the offending vehicle rashly and negligently. They rather alleged that the accident took place only due to negligence of the petitioner who was driving the scooter and due to high speed had lost the control.
44. Whereas petitioners have repeated same allegations in their evidence by way of affidavit but they were not cross examined at all by respondent no. 1 and 2 who were by then proceeded exparte.
45. Furthermore, respondent no. 1 never came to the witness box to prove his innocence or to show that the accident was result of own negligence of petitioner no. 1.
46. Thereafter, evidence of petitioners vis a vis negligence of respondent no. 1 in driving the vehicle rashly and negligently has remained unrebutted.
47. It is settled law that the test for proving negligence of the driver of offending vehicle for succeeding in a claim petition under M.V. Act is of preponderance of probabilities and not beyond all Mohd. Khalid v. Dharamveer & Ors. Page 12 of 22 reasonable doubts.
48. Applying the principles of res ipsa locquitor this issue is therefore decided in favour of petitioner and against respondents. ISSUE NO. 2:
49. The compensation payable to the claimant who is a victim of road accident should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equatable manner.
50. Compensation payable in injury cases is payable under two heads. They are pecuniary damages (special damages) and non pecuniary damages. Pecuniary damages have three sub heads which are : (i) expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure. (ii)
(a) Loss of earning ( and other gains) which the injured would have made had he not been injured, comprising of loss of earning during the period of treatment and (b) loss of future earnings on account of permanent disability (iii) Future medical expenses. Nonpecuniary damages (General Damage) are (iv) damages for pain, suffering and trauma as a consequence of injuries (v) loss of amenities (and /or loss of prospects of marriage) and (vi) loss of expectation of life Mohd. Khalid v. Dharamveer & Ors. Page 13 of 22 (shortening of normal longevity).
51. In routine personal injury cases compensation is awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospectus of marriage) and loss of expectation of life.
52. Mohd. Khalid was diagnosed with crushed injury right lower limb with exposed tibia (entire subcutaneous and posterior surface) with lost posterior tibial vessels and nerve with complete loss of structure lateral and posterior compartment.
53. Petitioner was admitted in the Hospital on 21.03.09 and was discharged on 28.04.09.
54. Petitioner was also advised complete bed rest for one month and treatment given to the petitioner was debridement cover with free LD flap (with vascularized loop) SSG wound debridement vein graft harvested from left leg under general anesthesia and discharged in a haemodynamically stable condition with complete uptake of graft.
55. Considering the fact that the petitioner had remained Mohd. Khalid v. Dharamveer & Ors. Page 14 of 22 admitted in the Hospital for more than a month from 21.03.09 to 28.04.09 and considering the nature of injuries and treatment given, petitioner is granted a compensation of Rs. 50,000/ for Pain and Suffering.
56. Bills for treatment have been given by the employer of the deceased. However, counsel for petitioner has argued that certain bills were paid by him which were not reimbursed by the employer and total of the same is Rs. 36,349/.
57. However, total of the bills placed on record by petitioner Mohd. Khalid as per Ex. PW4/1 is Rs. 25,891/. Therefore, for Treatment Cost Mohd. Khalid is granted a compensation of Rs. 25,891/.
58. Admittedly, petitioner has proved that they had remained on leave due to this accident from 18.03.09 to 11.11.09 which was without pay and thereafter from 12.11.09 to 24.11.09 on Privilege Leave i.e. Earned Leave.
59. PW1 has stated that Mohd. Khalid has joined the services on 25.11.09.
60. The above shows that petitioner had to remain on leave for more than 8 months due to this accident.
61. Salary of Mohd. Khalid after deducting income tax, conveyance, meal allowance was Rs. 16,023/. Therefore, for Loss of Mohd. Khalid v. Dharamveer & Ors. Page 15 of 22 Wages Mohd. Khalid would be entitled to a sum of Rs. 1,28,184/ (i.e. Rs. 16,023/ x 8= Rs. 1,28,184)
62. Considering the fact that the petitioner has remained under bed rest for a long period, for Special Diet, he is given a compensation of Rs. 10,000/ as well as a compensation of Rs. 10,000/ for Conveyance.
63. This petitioner has suffered permanent disability of 29% in relation to right lower limb. Same is proved by Ex. PW2/A which is the disability certificate given by DDU Hospital, New Delhi.
64. In the claim petition Sh. Mohd. Khalid has described himself as Loader Incharge. A Loader Incharge has to supervise loading and unloading and not to do loading himself being the Incharge.
65. Witness from the employer of the petitioner has also stated that petitioner is working as a Utility Head GradeII and not as Loader as is argued by counsel for petitioner.
66. Witness from the employer of the petitioner was called twice to prove salary slip and leave record but in his evidence nothing has come on record that future prospects of the petitioner will be affected due to permanent disability suffered by him in the accident. Therefore, in the absence of any such evidence, no compensation can be given to the petitioners for loss of wages in future due to Mohd. Khalid v. Dharamveer & Ors. Page 16 of 22 permanent disability.
67. However, for Loss of Amenities this petitioner is granted a compensation of Rs. 15,000/.
68. Also, considering long treatment of this petitioner he is granted Attendant's Charges at the rate of wages which are payable to an unskilled worker on the date of accident for a period of three months i.e. Rs. 3934 x 3 = Rs. 11,802/.
69. Therefore, the total compensation payable to the petitioner would be Rs. 2,50,877/ with interest at the rate of 9% per annum from the date of filing of this claim petition which is 14.10.09 till its payment.
70. For granting interest @ 9% p.a. reliance can be placed on the judgment of Hon'ble High Court of Delhi in Dhaneshwari & Anr. v. Tejeshwar Singh & Ors. MAC APP. 997/11 dated 19.03.12 where in para 72 and 73 the Hon'ble High Court has held as under:
72. In Rubi (Chandra) Dutta v. United India Insurance Co. Ltd. (2011) 11 SCC 269, the interest granted by the National Commission @ 9% was upheld by the Supreme Court. In Sant Singh v. Sukhdev Singh (2011) 11 SCC 632, interest @ 9% per annum was awarded by the Hon'ble Supreme Court. In Raj Kumar v. Ajay Kumar and Anr. 2011 (1) SCC 343, the interest @ 9% p.a. awarded by the Claims Tribunal was approved. In Arvind Kr. Mishra v. New India Assurance Co. Ltd. (2010) 10 Mohd. Khalid v. Dharamveer & Ors. Page 17 of 22 SCC 254, interest @ 9% p.a. was awarded on the enhanced amount of compensation.
73. In these circumstances, I would also follow the Bank rate of interest and would award interest @ 9% p.a. on the enhanced amount.
71. Now, the question of compensation payable to Sh. Afsar Ali is being taken up. As per Ex. PW6/A Sh. Afsar Ali has suffered crush injury right foot severely comminuted fracture clacaneun open lisfranc fracture dislocation with complete avulsed plantar skin.
72. The treatment given to petitioner as per discharge slip is Debridement + skeletal stabilization under spinal anesthesia on 21.03.2009 and debridement + SSG under general anesthesia on 06.04.2009.
73. He was advised high protein, high calorie diet at the time of discharge and was advised removal of steinmann pin after three weeks followed by removal of Kwire foot and plaster application after another 36 weeks in Ortho OPD.
74. The admission of Sh. Afsar Ali in the hospital was also from 21.03.09 to 17.04.09.
75. Considering the nature of injuries, period of stay in the Hospital and treatment given he is given a compensation of Rs. 40,000/ for Pain and Suffering.
Mohd. Khalid v. Dharamveer & Ors. Page 18 of 22
76. Although expenses for the treatment of this petitioner were also borne by his employer but he has stated that some of the bills were paid by him. Counsel for petitioner has argued that he had spent Rs. 22,000/ on his treatment.
77. However, as per Ex. PW5/1 the bills on record are worth Rs. 13,729/ and therefore Sh. Afsar Ali is given a compensation of Rs. 13,729/ for Cost of Treatment as well as Cost of Medicines.
78. This petitioner has suffered permanent disability of 28% in relation to right lower limb. Same is proved by Ex. PW2/B which is the disability certificate given by DDU Hospital, New Delhi.
79. In the claim petition Sh. Afsar Ali has described himself as Loader.
80. Witness from the employer of the petitioner was called twice to prove salary slip and leave record but in his evidence nothing has come on record that future prospects of the petitioner will be affected due to permanent disability suffered by him in the accident.
81. PW2 has stated that Sh. Afsar Ali was not a Loader but was working as Utility Head, GradeII.
82. Therefore, in the absence of any such evidence, no compensation can be given to the petitioners for loss of wages in future due to permanent disability.
83. However, for Loss of Amenities this petitioner is Mohd. Khalid v. Dharamveer & Ors. Page 19 of 22 granted a compensation of Rs. 15,000/.
84. Also, considering long treatment of this petitioner he is granted Attendant's Charges at the rate of wages which are payable to an unskilled worker on the date of accident for a period of three months i.e. Rs. 3934 x 3 = Rs. 11,802/.
85. As per PW1 Sh. Afsar Ali had remained on leave from 21.03.09 to 17.11.09 i.e. roughly for a period of eight months. The above shows that petitioner had to remain on leave for more than 8 months due to this accident. Salary of Sh. Afsar Ali after deducting income tax, conveyance, meal allowance was Rs. 16,023/ therefore for Loss of Wages Sh. Afsar Ali would be entitled to a sum of Rs. 1,28,184/.
86. Considering the fact that the petitioner has remained under bed rest for a long period, for Special Diet, he is given a compensation of Rs. 10,000/ as well as a compensation of Rs. 10,000/ for Conveyance.
87. Therefore, the total compensation payable to the petitioner would be Rs. 2,28,715/ with interest at the rate of 9% per annum from the date of filing of this claim petition which is 14.10.09 till its payment.
88. The next question is which of the respondents is liable to Mohd. Khalid v. Dharamveer & Ors. Page 20 of 22 pay this compensation to the petitioner.
89. Insurance company has successfully proved that the driving license of the driver of offending vehicle was fake. Evidence of R3W1, R3W2 and R3W3 is already noted in detail in preceding paragraphs.
90. In the case of National Insurance Company Ltd. v. Sanjay Kumar, MAC APP. No. 59/10 dated 13.03.12, it was held by Hon'ble High Court in para 5 and 6 as under: "5. Following Swaran Singh, (Supra) this Court in National Company Ltd. v. Sanjay Kumar ILR 2007(2) Delhi 733 held that even when breach of the terms and conditions of the policy of insurance and Section 149(2)(a) of the Motor Vehicle Act, 1988 is proved, the insurance company would still be required to pay the sum awarded to the claimant, but would be entitled to the recovery rights against the insured.
6. In MAC App. No. 329/2010, Oriental Insurance Company Ltd. v. Rakesh Kumar & Ors., decided on 03.02.2012, this Court noticed National Insurance Company Ltd. v. Swaran Singh & Ors. (2004) 3 SCC 297, Sohan Lal Pasi v. P. Sesh Reddy, (1996) 5 SCC 21, New India Assurance Co., Shimla v. Kamla & Ors. (2001) 4 SCC 342 and United India Insurance Co. Ltd. v. Lehru & Ors. (2003) 3 SCC 338 and held that even when there is a willful breach of the terms of policy under Section 149(2)(a) of the Act, the insurance company is under obligation to indemnify the liability towards the third party and recover the Mohd. Khalid v. Dharamveer & Ors. Page 21 of 22 same from the owner."
91. As per evidence of insurance company, it is proved that the driver of insured vehicle was driving the same at the time of accident without any valid and effective driving license to drive a commercial vehicle.
92. Resultantly, the compensation would be payable by insurance company in the first instance with liberty to recover the same from owner/insured in accordance with law.
93. Let compensation be deposited by insurance company within 30 days from today under intimation to the petitioners by registered post.
94. Copy of award be given dasti to all the parties.
95. File be consigned to record room.
Announced in the Open Court.
On the 31st day of May, 2012 (ARUN BHARDWAJ) PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNALII DWARKA COURTS, NEW DELHI.
Mohd. Khalid v. Dharamveer & Ors. Page 22 of 22