Geeta Devi & Anr v. Kavita & Ors(Iffco Tokio General Insurance Company Ltd)

REKHA PALLI, J MAY 11, 2023 al

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:11.05.2023 + MAC.APP. 914/2019, CM APPL. 51954/2019 (stay), CM APPL. 51955/2019 (delay if any) & CM APPL. 51957/2019 (delay in RF) GEETA DEVI & ANR ..... Appellants Through: Mr. Tushar Bathija, Mr. Abhimanyu Tewari, Ms. Eliza, Advs. versus KAVITA & ORS(IFFCO TOKIO GENERAL INSURANCE COMPANY LTD) ..... Respondents Through: Mr. Sameer Nandwani, Ms. Pooja Tandon, Advs. for R-3 CORAM: HON'BLE MS. JUSTICE REKHA PALLI REKHA PALLI (ORAL) MAC.APP. 914/2019 1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 preferred by the owner of the offending vehicle seeks to assail the award dated 06.07.2018 passed by the learned Motor Accidents Claims Tribunal in MACT No. 4415/2016 insofar as it grants recovery rights in favour of the insurer/respondent no.3. 2. Vide the impugned award, the learned Tribunal held that since the driving licence held by the driver of the insured vehicle, i.e., respondent no.2 was fake, there was a breach of the terms and conditions of the insurance policy and therefore the insurer was entitled to a right of recovery against the appellant. 3. The primary submission of Mr. Tushar Bathija, learned counsel for the appellant is that not only was the driving license of the respondent no.2 which, was later found to be fake, duly verified by her late husband at the time of engaging him but he had even taken a driving test of respondent no.2 and had found him fit for driving. The late husband of the appellant, having taken all possible steps to check that the driver was holding a valid license and was fit to drive the vehicle; even if the said license later turned out to be fake, it could not be held that the appellant had breached the terms and conditions of the insurance policy. 4. He submits that since the appellant's husband had expired by the time evidence was led before the learned Tribunal, the appellant had stepped into the witness box and specifically deposed during her cross-examination that her late husband had duly verified the licence of the driver at the time of his employment and also taken his driving test before employing him. He contends that in the light of these specific averments by the appellant, the learned Tribunal has erred in holding that there was a breach of the terms and conditions of the insurance policy thereby granting recovery rights in favour of the insurer. In support of his plea, he seeks to place reliance on the decisions of the Apex Court United India Insurance Co. v. Lehru, (2003) 3 SCC 338 and Nirmala Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49. He, therefore, prays that the impugned award in so far as it grants recovery rights to the respondent no.3 be set aside. 5. Per Contra, Mr. Sameer Nandwani, learned counsel for the insurer seeks to defend the impugned award by contending that once there was no direct evidence before the learned Tribunal to show that the late husband of the appellant had taken all possible steps to verify the driving license of the driver at the time of engaging him, the learned Tribunal cannot be faulted in holding that there was a breach of the terms and conditions of the insurance policy. He submits that the appellant merely stated that she had been informed by her husband about having taken a driving test of respondent no.2 and having checked his driving license. This he contends was not sufficient to show that the appellant's late husband had taken appropriate steps to check the licence of respondent no.1 at the time of taking him in employment. 6. Furthermore, respondent no.2, the driver of the offending vehicle had himself admitted during his cross examination that despite not being a resident of Mathura, he had obtained his driving licence from the license authority at Mathura. Even during his cross examination the respondent no.2 was not able to produce his driving license verification fee obtained from the licensing authorities. He therefore contends that onc