Delhi District Court
Nasreen Begum vs Anoop Kumar on 13 December, 2024
IN THE COURT OF SH. SACHIN GUPTA,
PRESIDING OFFICER:MOTOR ACCIDENT CLAIMS
TRIBUNAL-02, WEST, TIS HAZARI COURTS, DELHI
MACT No. 76505/2016
DLWT010005002014
1. Nasreen Begum
(wife of deceased Sh. Jan Mohammad)
2. Muzeem Khan
(son of deceased)
3. Heena
(daughter of the deceased)
4. Azeem Khan
(son of the deceased)
5. Sohil
(son of the deceased)
6. Arbaz Khan
(son of the deceased)
7. Neha
(daughter of the deceased)
8. Nisha
(daughter of the deceased)
All R/o H. No. 32, Allehpur,
PS Chandpa, Tehsil Hathras,
District Mahamaya Nagar,
U.P. ..... Petitioners
Vs.
1. Anoop Kumar
S/o Sh. Radha Mohan
R/o Village Jora Rampur,
PS Qayam Ganj,
District Farrukhabad, U.P (Driver) SACHIN Digitally signed by
SACHIN GUPTA
MACT no. 76505/16
GUPTA 17:24:33 +0530
Date: 2024.12.13
Date of Order: 13.12.2024
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 1 of 22
2. M/s Garg Roadlines
At WZ-14-D, Manohar Park,
Rohtak Road, New Delhi (Registered owner)
3. National Insurance Co. Limited
Branch Office 2881, Hardhian Singh Road
Behind Municipal Market,
Karol Bagh, New Delhi.
(Insurer) ....Respondents
AWARD
1. Vide Judgment-cum-Award dated 18.02.2020, an award was passed in favour of petitioners in the present matter; respondent no.3/insurance company was made liable to satisfy the award in the first instance and respondent no. 3 / Insurance Co. was given right to recover the amount of compensation from the respondent no. 1 and 2 being the driver and registered owner of the offending vehicle.
2. Thereafter, the respondent no. 1 and 2 filed an appeal before the Hon'ble High Court of Delhi (MAC. APP. 54/2022), thereby impugned the award dated 18.02.2020 to the limited extent that it grants recovery rights to the Insurance Company against the appellant.
3. The Hon'ble High Court vide Judgment dated 09.03.2022 passed in the aforesaid appeal (MAC. APP. 54/2022), the appeal was allowed to the limited extent that it grant recovery rights against the appellant. The case was remitted to the Tribunal on the limited extent of the grant of recovery rights against the appellant. It has been directed that Tribunal shall endeavour to conclude the recording of evidence on the limited extent of grant of recovery rights and pass a fresh award. In para no. 17 of the Digitally signed by SACHIN SACHIN GUPTA MACT no. 76505/16 Date GUPTAof Order:
Date:
13.12.2024 2024.12.13 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 2 of17:24:49 22 +0530 aforesaid Judgment passed by the Hon'ble High Court, it is clarified that this order will have no bearing on the rest of the award passed by the Tribunal and shall be without prejudice to the appeal filed by the Insurance Co. and the defence of the claimants therein.
4. Pursuant to the aforesaid Judgment of the Hon'ble High Court, respondent no. 1 and 2 got examined 05 witnesses i.e. R1W1 Sh. Rajendra Kumar, Head Assistant, ARTO Office, Farrukhabad, U.P.; R1W2 Sh. Tushar, Senior Assistant from the Office of ARTO, Bulandshehar, U.P.; R1W3 Sh. Rajesh Kumar, Accountant/Manager from the Office of AA Foundation for Safety, Gurugram, Haryana; R1W4 Sh. Sanjay Raj Kochar, Proprietor of M/s A.A. Foundation for Safety and R2W1 Sh. Kapil Kant, Manager/GPA of respondent no.2.
5. In response to the above-mentioned witnesses got examined on behalf of respondent no. 1 and 2, no witness was got examined on behalf of respondent no. 3 / Insurance Co., despite grant of repeated opportunities. However, prior to the passing of award dated 18.02.2020, respondent no.3/insurance company examined witnesses i.e. Sh. Rajender Kumar, Sr. Assistant/ARTO Office, Farukhabad, UP as R3W1 and Sh. B.S. Yadav, Assistant, National Insurance Company Limited as R3W2.
6. I have heard the arguments advanced by Ld. Counsel for respondent no. 1 and 2 as well as by Ld. Counsel for respondent no. 3 / Insurance Co. on the aspect of the 'recovery rights' and carefully perused the record.
7. Vide this order, I shall decide upon the aspect of the 'recovery rights'. Digitally signed by SACHIN SACHIN GUPTA Date:
GUPTA 2024.12.13 17:24:57 +0530 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 3 of 22
8. R1W1 Sh. Rajender Kumar, Head Assistant from ARTO office, Farrukhabad, U.P. inter alia deposed that he has brought the summoned record i.e. Extract of Driving license of Anoop Kumar, copy of which is Ex.R1W1/A and as per the record brought by him, the D/L bearing no. UP 76 20030000530 (previous no. DL No. 530/FKD/2006) is in the name of Sh.
Anoop Kumar S/o Sh. Radha Mohan R/o Joura Raypur, Kaimganj, Farrukhabad, valid for the period from 22.01.2003 to 21.01.2023 for Non Transport Vehicles and for a period from 09.07.2020 to 08.07.2023 for Transport Vehicles.
9. In his cross examination done by the Ld. Counsel for the insurance company, he inter alia stated that he had not brought any certificate u/s 65B of the Evidence Act in support of Computerized Extract of D/L of Anoop Kumar. His further cross examination was deferred to produce the manual record register in respect of D/L in question. On the next date of hearing i.e. 12.09.2023, he further stated in his cross examination that he had brought the License Register containing the record of driving licenses from 08.09.2006 to 16.12.2006; DL No. 530/FKD/2006 was issued by their office on 15.09.2006 valid upto 22.01.2023 for non-transport category, which is Ex.R1W1/X (OSR, Colly, 06 pages), on the basis of old D/L No. 562/FKD/03 dated 22.01.2003. He further stated that FDK in both the aforesaid driving licenses stands for Farukabad. He admitted that in case of renewal of a D/L by the Farukabad driving licenses authority, the driving license number does not change. He further stated that as per the records, his licensing authority had renewed the aforesaid D/L from time to time; that the said D/L was first time endorsed for transport category with effect from 04.10.2004 valid upto 03.10.2007; that thereafter, the said D/L was renewed for Digitally signed by SACHIN SACHIN GUPTA GUPTA Date:
MACT no. 76505/16 Date of17:25:05
Order:
2024.12.13
+053013.12.2024
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 4 of 22 transport category with effect from 15.11.2010 to 14.11.2013; that there was a gap of three years in the renewal of D/L; that the said D/L can be renewed even after gap of three years by imposing the penalty for the delay; that the D/L holder was charged a renewal fees alongwith penalty totalling amount of Rs.250/-.
10. R1W1 further stated in his cross examination that he is not sure about the relevant fees for renewal and penalty amount at that time; that he had brought the original fees register showing the relevant entry in respect of one Mr. Anoop Kumar at point A vide receipt no. 331677 in respect of many other applicants as well at point B of the relevant page Ex. R1W1/Y (OSR). He admitted that the father's name, address of the applicant as well as the D/L number of the applicant were not mentioned against the name of Mr. Anoop Kumar at the said page Ex. R1W1/Y. He further stated that the said entry number 331677 was manually mentioned on the record of the D/L number 530/FKD/06; that he cannot gave any reason as to why the D/L number was changed from 562/FKD/03 to 530/FKD/06; that not only, the D/L number of Anoop Kumar had been changed but as per the record, all the old number of D/L of any driver had been changed to new one in the year 2006 and to that effect, he can file the records of issuance of renewal of D/L. He admitted that in the year 2010, no fresh D/L number had been given or changed. He denied that the entry no. 331677 was not related to Mr. Anoop Kumar, D/L holder of DL No. 530/FKD/06. He further denied that the said manual entry had been forged in the record of DL no. 530/FKD/06 after the accident dated 21.07.2013 in back date in collusion with Mr. Anoop Kumar or that no such D/L was ever validly renewed on 15.11.2010 or thatDigitally record signedfiled by SACHIN MACT no. 76505/16 SACHIN GUPTA Date of Order:
Date:13.12.2024 GUPTA 2024.12.13 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 5 of17:25:15 22 +0530 by him is forged and fabricated. He also denied that the receipt number/entry can be filled in any of the D/L, which have subsequently used for renewal of D/L in the name of Mr. Anoop Kumar as the D/L No. has not been mentioned in the receipt entry as per the record Ex.R1W1/Y. The said witness was asked a Court question that as per his testimony, in the year 2006, they have changed the old DL number to new DL. Can he file at least 10 previous entry and 10 next entry from the entry of Anoop Kumar. The said question was answered by the witness in affirmative and replied that yes, he can file, accordingly, the same was filed, which is Ex.R1W1/Z (OSR, Colly, 20 pages).
11. R1W2 Sh. Tushar, Sr. Assistant from the office of ARTO Bulandshahr, U.P. deposed inter alia that he had been authorized by ARTO, Bulandshehar, U.P. to appear alongwith the requisite record and depose in the present matter; that he had brought the original permit record register maintained by Regional Transport Office, Ghaziabad alongwith one covering letter under signatures of Sh. Pramod Kumar Singh, RTO, Ghaziabad dated 27.05.2024; that upon receiving the summons of the Court in the ARTO Office, Bulanshehar U.P., a letter was issued to the RTO Office, Ghaziabad, requisitioning the summoned record i.e. record pertaining to the vehicle bearing No. UP13Q-9588, copy of letter is Ex.R1W2/X; that thereafter, the permit record register maintained by RTO Office, Ghaziabad alongwith aforesaid covering letter under the signature of RTO Office, Ghaziabad was received in the ARTO Office, Bulandshehar, U.P. He further deposed that as per the permit record register, the vehicle bearing registration no. UP13Q9588 was having the permit bearing no.
UP/14/111/Good/2009/02489M, which was valid for the period SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.12.13 MACT no. 76505/16 Date of Order: 13.12.2024 17:25:24 +0530 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 6 of 22 from 04.03.2009 to 03.03.2014 for the State of UP. and the relevant entry regarding the permit of the aforesaid vehicle is at page no. 53 of the original permit record register and the said permit was in the name of M/s Garg Roadlines. Copy of relevant page containing the details of the permit of the vehicle bearing no.UP13Q9588 is Ex.R1W2/A (Original register seen and returned). Covering letter under signature of Sh. Pramod Kumar Singh, RTO Ghaziabad is Ex. R1W2/B. He further deposed that the said vehicle bearing no. UP13Q9588 was having valid permit on 21.07.2013 for the State of U.P.
12. In his cross examination done by the Ld. Counsel for the insurance company, he inter alia stated that he was not employed with RTO Ghaziabad at the time of issuance of the said permit; that he did not have any personal knowledge about the preparation of the record brought by him and he cannot identify the signatures appearing on the Ex.R1W2/A. He denied that the record brought by him is false and fabricated or that there was no valid permit in respect of the vehicle no. UP13Q9588 as on 21.07.2013 or that he was deposing falsely.
13. R1W3 Sh. Rajesh Kumar, Accountant/Manager from the office of AA Foundation for Safety has deposed inter alia that he has been authorized by his firm i.e. AA Foundation for Safety to appear and produce the requisite record, copy of authority letter in his favour is Ex.R1. He further deposed that he had brought the summoned record in respect of training certificate dated 06.05.2013 issued by their firm, copy of same is Ex.R1W3/A (OSR) and as per the certificate, a training for safe transport of hazardous goods by road was given to Mr. Anoop Kumar and the said certificate was valid from 06.05.2013 to 05.05.2014. He also brought two Form no. 11 bearing license no.
Digitally signed SACHIN by SACHIN
GUPTA
MACT no. 76505/16 Date of Order:
GUPTA 13.12.2024
Date: 2024.12.13
17:25:32 +0530
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 7 of 22 40/MTDS/DTO/G/2006, one is valid from 17.04.2006 to 16.04.2011 and another is valid from 08.08.2011 to 07.08.2016, which was further renewed upto 07.08.2021, copy of same are Ex.R1W3/B1 and Ex.R1W3/B (OSR) respectively. He further deposed that he had also brought copy of e-mail dated 24.08.2012 received from Mr. K.M. Chaudhary, DGM, Health, Safety and Environment, New Delhi, confirming in para no. 3 that their agency was finalized for conducting the training and that their location i.e. A.A. Foundation for Safety has organized training successfully in 2011-2012 and 2012-2013 and the same is Ex.R1W3/C (OSR). He further deposed that he had also brought the record of persons who obtained training from their institute in the year 2013 and the same is Ex.R1W3/D (OSR); that he has also brought the letter no. AV/ISM/SSW dated 14.02.2009 issued by Indian Oil Corporation Limited, AFS, Sarsawa, UP, to their company/institute regarding imparting of training to its driver and the copy of said letter is Ex.R1W3/E (OSR); that he had also brought a letter dated 03.07.2013 issued from the office of Health, Safety and Department, Northern Region, regarding renewal of authorization of their company to give training for drivers driving vehicles carrying hazardous goods and the copy of same is Ex.R1W3/F.
14. In his cross examination done by the Ld. Counsel for the insurance company, he has stated that he was employed with A.A. Foundation for the last one year. He denied that AA Foundation was not authorized to issue any certificate dated 06.05.2013 or that the certificate no. 2741 issued to Mr. Anoop Kumar was false and fabricated document or that the same has been issued without giving any training to the said person or that document filed by him are false or that he was deposing falsely.
Digitally signed by SACHINSACHIN GUPTA GUPTA Date:
MACT no. 76505/16 Date of Order:
2024.12.13
13.12.2024
17:25:41 +0530
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 8 of 22
15. R1W4 Lt. Col. Sanjay Raj Kochar has deposed inter alia that he was a proprietor of M/s AA Foundation for Safety from 17.04.2006 to 07.08.2021; that their firm was authorized to give training to the drivers driving vehicles carrying hazardous goods for the period from 2009 till 2021 and during the said period, their firm also gave training to Mr. Anoop Kumar for driving the vehicle carrying hazardous goods and issued a certificate dated 06.05.2013 valid upto 05.05.2014 and the same is already exhibited as Ex.R1W3/A (OSR). He further deposed that as per the certificate, a training for safe transport of hazardous goods by road was given to Mr. Anoop Kumar and the said certificate was valid from 06.05.2013 to 05.05.2014. He further relied upon the documents, which are already exhibited as Ex.R1W3/B, Ex.R1W3/C, Ex.R1W3/D and Ex.R1W3/F. In his cross examination done by the Ld. Counsel for the insurance company, he denied that AA Foundation was not authorized to give any training and to issue any certificate to Mr. Anoop Kumar on the said period as mentioned in the certificate or that the certificate no. 2741 issued to Mr. Anoop Kumar was false and fabricated document or that the same has been issued without giving any training to the said person.
16. R2W1 Sh. Kapil Kant, Manager/GPA of the respondent no.2 filed an affidavit Ex.R2W1/A in evidence, which is Ex.R2W1/A and relied upon document i.e. GPA in his favour Ex.R2W1/1 and also relied upon the documents filed on record and already exhibited through the evidence of R1W1 to R1W4. In his cross examination by Ld. Counsel for Insurance Co., he stated that he was employed with M/s Garg Roadlines since 2011; that he had not brought any document to show that he was employed with M/s Garg Roadlines; that he himself did not Digitally signed by SACHIN MACT no. 76505/16 SACHIN GUPTA Date ofDate:
Order: 13.12.2024 GUPTA 2024.12.13 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 17:25:54 9 of 22 +0530 verify any documents regarding the DL, Permit, Certificate of training of driver Anoop Kumar to driver the vehicle carrying hazardous goods and Fitness; that he cannot say whether there is any document on record to show the endorsement carrying the hazardous goods on the driving license of the driver Anoop Kumar; that he does not have any documentary proof to show that vehicle was empty at the time of incident; that he was not present at the spot. He denied that hazardous goods were being carried at the time of accident or that there was violation of terms and conditions of insurance policy on the part of the owner. He also denied that driver was not holding a valid and effective driving license for carrying the hazardous goods as on the date of accident or that there was no valid and effect Permit in respect of the vehicle as on the date of accident or that documents being relied upon him are false and fabricated or that he is deposing falsely to avoid the liability of driver as well as of the owner.
17. In the present matter, respondent no. 3 / Insurance Co. has sought the 'recovery rights' as against the respondent no. 1 and 2 on the grounds that respondent no. 1 / driver was not holding a valid and effective driving license for driving a vehicle carrying the hazardous goods as on the date of accident and there was no valid and effective Permit and Fitness in respect of the offending vehicle and thus, there was breach of terms and conditions of the insurance policy. Per contra, Ld. Counsel for the respondent no. 1 and 2 has argued that at the time of alleged accident, the said truck was empty and there was no hazardous goods of any kind in the said truck; that there is no material on record to prove that the vehicle was carrying any hazardous goods and since the truck was empty at the time of alleged accident, the certificate of training to drive the vehicle carrying Digitally signed MACT no. 76505/16 SACHIN Date by SACHIN of Order:
GUPTA13.12.2024 GUPTA Date: 2024.12.13 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 10 of17:26:03 22 +0530 hazardous goods was not even required. It is also argued that even though, there was no need for the said certificate, the respondent no. 1 still had the said certificate. He further argued that respondent no.1 was having valid and effective driving license to drive the vehicle in question bearing no. UP13Q9588 on the date of accident and the aforesaid vehicle was also having valid Permit and Fitness certificate on the date of accident and therefore, there was no violation of terms and conditions of the insurance policy and respondent no.3/insurance company is, thus, not entitled to any recovery rights.
18. In support of their contentions in respect of the driving license of respondent no. 1, the above-mentioned witnesses i.e. R1W1 Sh. Rajender Kumar, R1W3 Sh. Rajesh Kumar, R1W4 Sh. Sanjay Raj Kochar and R2W1 Sh. Kapil Kant were got examined on behalf of respondent no. 1 and 2. As per the extracts of driving license of Anoop Kumar (respondent no.
1) produced by R1W1 Sh. Rajender Kumar, the DL no. UP76 20030000530 (previous DL no. 530/FKD/2006) was issued in the name of Sh. Anoop Kumar S/o Sh. Radha Mohan on 22.01.2003;
COV details shows that it was issued for LMV on 22.01.2003 and for Transport vehicle on 04.10.2004; it was last endorsed on 09.07.2020 and its validity for 'Non-Transport' is from 22.01.2003 to 21.01.2023 and for 'Transport' is from 09.07.2020 to 08.07.2025. R1W1 Sh. Rajender Kumar, Head Asstt. ARTO Office, Farukhabad, U.P. categorically stated in his cross examination that the said driving license was first time endorsed for transport category with effect from 04.10.2004 valid upto 03.10.2007 and thereafter, the said driving license was renewed for transport category with effect from 15.11.2010 to 14.11.2013. He has also filed record of the DL including the manual record Digitally signed by SACHIN SACHIN GUPTA MACT no. 76505/16 Date of Order:Date:
GUPTA 13.12.2024
2024.12.13
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 11 of 22 17:26:12 +0530 which is Ex.R1W1/X (OSR) (06 pages), wherein also there is a manual entry for renewal with effect from 15.11.2010 to 14.11.2013, which has been mentioned at page 4 of Ex.R1W1/X (06 pages), which further corroborates the oral testimony of said witness R1W1. He was cross examined at length by the Ld. Counsel for Insurance Co., however, there is nothing material elicited from his cross examination which would impeach his credibility or trustworthiness or cast doubt over the record produced by the said witness. The date of accident in the present case is 21.07.2013. As evident from the testimony of R1W1 as well as the record produced by him, the driving license of respondent no. 1 Anoop Kumar was renewed for transport category with effect from 15.11.2010 to 14.11.2013, which covers the date of accident in the present case. Thus, in view of aforesaid discussion and material available on record, it is duly established that respondent no. 1 (driver of the offending vehicle) was holding a valid driving license to drive the transport vehicle on the date of accident in question.
19. So far as the plea of insurance company that respondent no. 1 (driver of the offending vehicle) was not holding a valid driving license to drive a vehicle carrying the hazardous goods as on the date of accident is concerned, Ld. Counsel for the respondent no. 1 and 2 has vehemently argued that at the time of alleged accident, the said truck was empty and there was no hazardous goods of any kind in the said truck and since the truck was empty at the time of alleged accident, the certificate of training to drive the vehicle carrying hazardous goods was not even required. It is also argued that even though, there was no need for the said certificate, the respondent no. 1 still had the said certificate. He further argued that there is no Digitally signed by SACHIN SACHIN GUPTA MACT no. 76505/16 Date of Order:
GUPTA Date:
13.12.2024
2024.12.13
17:26:22 +0530
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 12 of 22
material on record to prove that the vehicle was carrying any hazardous goods and there is neither a plea nor evidence as to whether the truck was carrying any hazardous substance when it met with an accident and in the absence of such a plea and evidence, there can be no presumption that the said vehicle was carrying or not carrying the substance. It is thus argued that respondent no.1 was having valid and effective driving license to drive the vehicle in question and therefore, there was no violation of terms and conditions of the policy. He has relied upon the following judgments:-
(i) MAC Appeal no. 1043/2016, titled as "National Insurance Co. Ltd. Vs. Sonia Mittal & Ors." decided on 12.10.2017 by the Hon'ble High Court of Delhi;
(ii) MAC Appeal no. 1013/2012, titled as "Rajouri Garden Gas Services Vs. Sabnam & Ors.", decided on 07.09.2016 by the Hon'ble High Court of Delhi;
(iii) 2019 ACJ 2937, titled as "Hardeep Singh and another Vs. United India Insurance Co. Ltd.", decided on 30.01.2019 by Hon'ble High Court of Punjab and Haryana;
(iv) 2019 ACJ 2939, titled as "Bajaj Allianz General Insurance Co. Ltd. Vs. Sri Niwas Shukla and others", decided on 14.08.2018 by the Hon'ble High Court of Delhi;
(v) MFA No. 9293/2015, titled as "Smt. Uma Raghu Vs. Smt. Mamtaz & Others," decided on 03.10.2018 by the Hon'ble High Court of Karnataka, Bengaluru;
(vi) 2019 ACJ 2445, titled as "New India Assurance Co. Ltd. Vs. Sunita and others," decided on 04.05.2019 by the Hon'ble High Court of Madhya Pradesh, Gwalior Bench; and SACHIN Digitally signed by SACHIN GUPTA GUPTA Date: 2024.12.13 17:26:34 +0530 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 13 of 22
(vii) FAO no. 54/2013 titled as "Oriental Insurance Co. Ltd. Vs. Rajinder Kumar Sharma & Others," decided on 17.02.2017, by the Hon'ble High Court of Punjab & Haryana, Chandigarh.
20. Per contra, Ld. Counsel for Insurance Co. has argued that it is not proved that respondent no.1 was having training certificate to drive the vehicle carrying hazardous goods and there was no endorsement on the driving licence of respondent no.1 authorizing him to drive a vehicle carrying hazardous goods. It is further argued that it is immaterial whether the offending vehicle was carrying any hazardous goods or not and whether the offending vehicle was empty or filled at the time of accident.
21. R1W3 Sh. Rajesh Kumar, Accountant/Manager from the office of 'AA Foundation for Safety' has deposed that Mr. Anoop Kumar (respondent no.1 herein) was given training for safe transport of hazardous goods by road by his firm i.e. 'AA Foundation for Safety' and training certificate was issued to him by his firm, which was valid from 06.05.2013 to 05.05.2014, copy of the same is Ex.R1W3/A(OSR). R1W4 Sh. Sanjay Raj Kochar, Proprietor of M/s AA Foundation for Safety also deposed that their firm was authorized to give training to the drivers driving vehicles carrying hazardous goods for the period from 2009 till 2021 and during the said period, their firm also gave training to Mr. Anoop Kumar for driving the vehicle carrying hazardous goods and issued a certificate dated 06.05.2013 valid upto 05.05.2014 and the same is already exhibited as Ex.R1W3/A (OSR). The said witnesses were also cross examined on behalf of Insurance Company, however, there is nothing material elicited from their cross examination which would impeach their credibility or trustworthiness or cast doubt Digitally signed by SACHIN SACHIN GUPTA MACT no. 76505/16 Date of Order:
GUPTA 13.12.2024
Date:
2024.12.13
Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 14 of 17:26:41 22 +0530 over the record/ documents including the training certificate Ex.R1W3/A produced by the said witnesses. Moreover, R2W1 Sh. Kapil Kant has deposed that at the time of alleged accident, the said truck bearing no. UP13Q-9588 was empty and there was no hazardous goods of any kind in the said truck.
22. The Hon'ble High Court of Delhi in the case titled "National Insurance Company Limited Vs. Sonia Mittal & Ors., MAC Appeal no. 1043/2016 decided on 12.10.2017", held in para no. 11 as under:-
"11. Coming to the defence taken by the insurance company vis-a-vis the driver and owner of the offending vehicle, what distinguishes the case at hand is that the driver of the offending vehicle had undergone the requisite training which had been duly certified. There is nothing on record to show that the insurance company raises questions about the validity of the training certificate. It is insisting merely on the fact that there was no endorsement secured from the transport authority in terms of the requirement under the rules. That, however, ought not cut any ice. What is the crucial requirement is the special training for driving a vehicle meant for transportation of hazardous goods. That requirement had been fulfilled. Securing of endorsement in wake of such certification of the special skill was more of ministerial nature. The rule of main purpose would apply [see National Insurance Company V. Swaran Sikngh (2004) 3 SCC 297]. The plea of insurers for recovery rights, is therefore, rejected."Digitally signed
SACHIN by SACHIN GUPTA GUPTA Date: 2024.12.13 17:26:50 +0530 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 15 of 22
23. The Hon'ble High Court of Punjab and Haryana in the case titled "Oriental Insurance Co. Ltd. Vs. Rajinder Kumar Sharma & Others, FAO no. 54/2013, decided on 17.02.2017", held as under:-
"...Admittedly, the driver was holding a licence to drive a tanker. The endorsement neither increases the efficiency of a driver nor decreases in case of its absence. It only authorizes to carry goods of dangerous or hazardous nature. For driving such a vehicle, no further experience of driving is required. This could be said to be a lapse on the part of the driver as well on the part of the appellant but this lapse was not responsible for the cause of any accident. The crux of the matter is that if the driver was not having necessary endorsement as required under the Rules, it cannot be said to be the cause of accident. The endorsement is not required to be given to the driver after having gone through any special training or after having passed any special test. Any driver who is possessing a driving licence to drive a tanker would also be entitled to have this endorsement subject to fulfilling all other conditions as required under the Motor Vehicles Rules/Motor Vehicles Act with regard to professional skill of driving. It has been certified by the licensing authority at the time of granting licence to him that he was entitled to have driving licence on the basis of test and other driving skills. It is not the case of the appellant that his driving licence was not obtained properly."
SACHIN Digitally signed by SACHIN GUPTA GUPTA 17:26:58 +0530 Date: 2024.12.13 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 16 of 22
24. The Hon'ble High Court of Bombay in the case titled as "Vijay Arvind Pore Vs. Rupali Ramas Deshmukh & Ors., First Appeal No. 1175 of 2010 decided on 04.05.2023", held in para no. 13 as under:-
"13. In my view, it is not necessary that at all the time the truck was filled with gas cylinders. The spot panchanamma which was prepared after three to four months of the accident, does not show that offending truck was carrying gas cylinders at the time of the accident.
Without any evidence, the Tribunal has erroneously held that at the time of the accident the offending truck was carrying gas cylinders. The driver of offending truck was holding effective and valid license of driving heavy vehicle but there was no endorsement on it for carrying hazardous goods and, on that basis, liability is fixed on Appellant, which is erroneous. No evidence is produced on record by the Insurance Company nor any suggestion was given by the learned counsel for the Insurance Company to the eye witnesses that at the time of the accident, the offending truck was carrying gas cylinders. There is no breach of terms and conditions of Insurance Policy."
25. The Hon'ble High Court of Delhi in the case titled as "'Rajouri Garden Gas Services Vs. Shabnam & Ors, MAC APP no. 1013/2012"', decided on 07.09.2016", held as under:-
"4. Learned counsel for the appellant submits that the offending vehicle was neither carrying petrol nor petroleum goods at the time of the accident. It is submitted that the offending vehicle was Digitally signed by SACHIN carrying empty gas cylinders at the time of the SACHIN GUPTA Date:
GUPTA 2024.12.13 MACT no. 76505/16 Date of Order: 13.12.2024 17:27:07 +0530 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 17 of 22 accident and the driver of the offending vehicle was authorized to drive the truck carrying empty gas cylinders.
5. There is merit in the contention of learned counsel for the appellant. Considering that the offending vehicle was not carrying petrol or petroleum products at the time of the accident and the driver of the offending vehicle had a valid driving licence to drive heavy goods vehicle, there is no violation of the terms and conditions of the policy".
26. In the present case, it is duly established on the basis of the testimony of witnesses i.e. R1W3 Sh. Rajesh Kumar and R1W4 Sh. Sanjay Raj Kochar and documents produced by them, particularly training certificate Ex.R1W3/A that respondent no. 1 had obtained the requisite training for driving a vehicle carrying hazardous goods and the said certificate was valid for the period from 06.05.2013 to 05.05.2014, which covers the date of accident i.e. 21.07.2013. In view of the Judgment of the Hon'ble High Court in the case of Sonia Mittal (supra), since, the crucial requirement of the special training for driving a vehicle meant for transportation of hazardous goods has been fulfilled by respondent no.1 in the present case, the aforesaid plea on behalf of respondent no.3/insurance company on this count is not found sustainable.
27. Furthermore, in the present case also, no evidence has been produced on record by the Insurance company to prove on record that at the time of accident, the offending vehicle was carrying any hazardous goods and there is no cogent evidence available on record to prove the same. In absence of any cogent Digitally signed by SACHIN evidence, it cannot be presumed that the offending vehicle was SACHIN GUPTA GUPTA Date:
2024.12.13 17:27:17 +0530 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 18 of 22 carrying any hazardous goods at the time of accident. Thus, in view of the Judgment of the Hon'ble High Court of Bombay in the case of Vijay Arvind Pore (supra), the aforesaid plea on behalf of respondent no.3/insurance company that there is breach of terms and conditions of insurance policy on this count is also not found sustainable and liable to be rejected. In view of aforesaid discussion and material available on record, it is thus held that respondent no.1 was holding a valid and effective driving licence to drive the offending vehicle i.e. vehicle bearing no. UP13Q9588 on the date of accident.
28. So far as another plea of the respondent no.3 regarding the valid permit of the offending vehicle is concerned, the respondent no.1 and 2 have examined R1W2 Sh. Tushar, Sr. Assistant, ARTO, Bulandshahr, UP, who brought the original permit record register maintained by concerned Regional Transport Office. He further deposed that as per the permit record register, the vehicle bearing registration no. UP13Q9588 was having the permit bearing no.
UP/14/111/Good/2009/02489M, which was valid for the period from 04.03.2009 to 03.03.2014 for the State of U.P. and the relevant entry regarding the permit of the aforesaid vehicle is at page no. 53 of the original permit record register and the said permit was in the name of M/s Garg Roadlines. Copy of relevant page containing the details of the permit of the vehicle bearing no.UP13Q9588 is Ex.R1W2/A (Original register seen and returned). He further deposed that the said vehicle bearing no. UP13Q9588 was having valid permit on 21.07.2013 for the State of U.P. The said witness was cross examined by the Ld. Counsel for Insurance Company, however, there is nothing material elicited from his cross examination which would Digitally signed by SACHIN SACHIN GUPTA Date:
GUPTA 2024.12.13 MACT no. 76505/16 Date of Order: 13.12.2024 17:27:25 +0530 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 19 of 22 impeach his credibility or trustworthiness or cast doubt over the record produced by the said witness. The date of accident in the present case is 21.07.2013. In view of aforesaid discussion and material placed on record, it is duly established that offending vehicle bearing registration no. UP13Q9588 was having valid Permit which was valid for the period from 04.03.2009 to 03.03.2014 for the State of UP, which covers the date of accident in the present matter.
29. So far as the plea of the respondent no.3 regarding the valid Fitness Certificate of the offending vehicle is concerned, R2W1 Sh. Kapil Kant inter alia deposed that respondent no.2 being owner of Truck no. UP-13Q-9588 was also having a valid Fitness certificate with him. He also filed copy of a document, which is stated to be the Certificate of Fitness of offending vehicle bearing no. UP-13Q-9588. However, the same is not very legible nor proved in accordance with law. At this juncture, it is pertinent to mention that Hon'ble Apex Court in the case titled as "National Insurance Co. Ltd. Vs. Nicolletta Rohtagi & Ors.", III (2002) ACC 292(SC), has been pleased to held in para no.14 of the judgment as under:-
"xxxx
14. It is relevant to note that the Parliament, while enacting Sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach on conditions of the policy by the insured which does not find place in Sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If the Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of the insurance policy in Sub-Section (2) of Digitally signed by SACHIN SACHIN GUPTA GUPTA Date:
2024.12.13 MACT no. 76505/16 Date of Order: 13.12.2024 17:27:34 +0530 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 20 of 22 Section 149. If we permit the insurer to take any other defence other than those specified in Sub-section (2) of Section 149, it would mean we are adding more defences to insurer in the statute which is neither found in the Act nor was intended to be included."xxxx
30. It is quite evident from the relevant portion of the aforesaid decision reproduced herein-above that defences available to insurance company is limited only to those which are provided U/s 149 (2) M.V Act (Pre 2019 Amendment). A bare perusal of provision contained in Section 149 (2) M.V Act (Pre 2019 Amendment) would make it abundantly clear that requirement of Fitness Certificate is not either of the defences available in the said provision. Moreover, the requirement of Fitness Certificate is also not one of the conditions of the insurance policy. Thus, I am of the considered opinion that even if there is no valid fitness certificate in respect of offending vehicle as on the date of accident, the insurance company cannot be allowed to avoid its liability to pay the compensation amount or to ask for grant of recovery rights against the insured. While saying so, I am also fortified by Single Judge Bench decision of our own Hon'ble High Court in MAC APP No. 361/10 decided on 23.04.12.
31. In view of the aforesaid discussion, it becomes clear that the respondent no.3/insurance company has failed to prove any violation of terms and conditions of insurance policy. In view of the aforesaid discussion and material available on record, it is, therefore, held that the respondent no.3/insurance company is not entitled for the recovery rights against the respondent Digitally no.1 signed by SACHIN and 2.
SACHIN GUPTA GUPTA Date:
2024.12.13 17:27:43 +0530 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 21 of 22
32. A copy of this order be given to the parties free of cost.
33. File be consigned to record room.
Digitally signed by SACHINSACHIN GUPTA Announced in the open Court (SACHIN GUPTA) GUPTA Date:
2024.12.13 On 13th December, 2024 P.O. MACT-02 (WEST) 17:27:50 +0530 THC/Delhi/13.12.2024 MACT no. 76505/16 Date of Order: 13.12.2024 Nasreen Begum & Ors. Vs. Anoop Kumar & Ors. Page No. 22 of 22