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2008 DIGILAW 713 (DEL)

National Insurance Co. Ltd. v. Bindeshwar Singh

2008-07-28

KAILASH GAMBHIR

body2008
JUDGMENT Kailash Gambhir, J. 1. By way of the present appeal, the appellant insurance company challenged the impugned award dated 28.11.2006 primarily on the ground that the Tribunal has not granted recovery rights to the appellant insurance company although the appellant has duly proved on record that as on the relevant date of accident the driver of the offending vehicle was not in possession of any licence. The brief facts of the case relevant for deciding the present appeal are as under: On 5.7.2003, at about 7.30 P.M. the respondent claimant was going to his office situated at Daryaganj from Raja Garden on his motor cycle bearing registration No. DL-2SL-0494 and when he was crossing the traffic signal of West Patel Nagar, he was hit from behind by a bus and dragged upto some distance. As a result of the impact he sustained grievous injuries on his right leg. Ms. Manjusha Wadhwa, counsel appearing for the appellant contended that the accident in the present case has taken place on 5.7.2003 and the driving licence in favour of the driver was valid up to 14.2.2003. The said licence was renewed by the driver on 31.7.2003 which was valid up to 30.6.2006. Counsel, thus, urged that this is an admitted position on record that as on the date of accident, the driver was not holding any licence. Counsel further derived support from Section 15 of the Motor Vehicles Act to contend that since it is a duty casted on the driver to have renewal of the licence within the prescribed period of 30 days and since renewal was not taken by the appellant within this period, therefore, the licence which was subsequently renewed, could not have effect of revalidating the said licence from the date of its issuance. 2. Counsel, thus, contended that as on the date of accident clearly, the driver was not holding any licence and therefore, in such like cases at least recovery rights can be given to the insurance company to recover the award amount from the owner of the offending vehicle. 3. Counsel for the appellant placed reliance on the judgment of the Apex Court reported in National Insurance Co.Ltd. v. Jernail Singh and Ors. JT 2001 (Supp.2) SC 218; National Insurance Co. Ltd v. Smt. Kusum Rai and Ors. AIR2006SC3440 and Ishwar Chandra and Ors. v. The Oriental Insurance Co.Ltd. and Ors. 3. Counsel for the appellant placed reliance on the judgment of the Apex Court reported in National Insurance Co.Ltd. v. Jernail Singh and Ors. JT 2001 (Supp.2) SC 218; National Insurance Co. Ltd v. Smt. Kusum Rai and Ors. AIR2006SC3440 and Ishwar Chandra and Ors. v. The Oriental Insurance Co.Ltd. and Ors. AIR2007SC1445 Counsel further submitted that the owner of the offending vehicle i.e., respondent No 1 led no evidence, and therefore, also the appellant is entitled to claim recovery rights from the owner of the offending vehicle. Counsel also submitted that recovery rights be given to the appellant insurance company according to the judgment entitled Oriental Insurance Company Ltd. v. Nanjappan and Ors. 2005 SCC (Cri) 148. Per contra, Mr. B.M. Bharti, counsel appearing for the respondent No. 3 on the other hand submitted that no recovery rights can be granted to the Insurance company simply on the ground that the licence was not renewed by the driver of the offending vehicle. Contention of learned Counsel for the respondent is that the driver was in possession of the valid driving licence which was issued earlier from the date of accident. Placing reliance on the judgment reported in National Insurance Co. Ltd. v. Swaran Singh and Ors. I(2004) CLT 1 case, counsel contended that non-renewal of the licence in the intervening period cannot amount to fundamental breach on the part of the driver or the owner of the offending vehicle and therefore, no recovery rights can be granted to the appellant insurance company. Mr. Nikhilesh, counsel appearing for respondents claimants submitted that the claimants are being made to suffer on account of stay granted by this Court vide order dated 28-02-2007. 4. I have heard learned Counsel for the parties and perused the record. The issue raised in the present appeal is no more res integra in view of the recent decision reported in Ishwar Chandra and Ors. v. The Oriental Insurance Co. Ltd. and Ors. AIR2007SC1445 . The Apex Court after placing reliance on the decisions given in the case of Oriental Insurance Co. Ltd. v. Nanjappan and Ors. AIR2004SC1630 and National Insurance Company Limited v. Swaran Singh and Ors. AIR2004SC1531 has held that it is an obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. Ltd. v. Nanjappan and Ors. AIR2004SC1630 and National Insurance Company Limited v. Swaran Singh and Ors. AIR2004SC1531 has held that it is an obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The facts of the present case indisputably suggest that the driver of the offending vehicle did not take any step to get the licence renewed after the licence expired on 15.2.2003. The same was only renewed on 31st July, 2003 with validity period up to 30th June, 2006. 5. The accident in the present case had taken place on 5.7.2003 and therefore, admittedly the driver of the offending vehicle was not in possession of the valid driving licence on the date of the accident i.e. 5.7.2003. Section 15 of the Motor Vehicles Act clearly envisage that renewal of the driving licence would be effective from the date of its expiry only when the renewal is sought within a period of 30 days and if any application for renewal thereof is filed thereafter the same would be taken to be renewed from the date of its renewal. In the present case driver got the licence renewed on 31.7.2003 and therefore, by no stretch of imagination it can be said that the driver was in possession of valid licence as on the date of the accident. The argument raised by the counsel for the respondent that non-renewal of licence in the intervening period cannot amount to fundamental breach on the part of the driver or on the part of the owner of offending vehicle holds no water in view of the recent judgment of the Apex Court in Ishwar Chandra and Ors. (Supra). It would be appropriate to refer to the following paras of the judgment: .8. Section 15(1) of the Act and the first proviso appended thereto reads as under: .15. Renewal of driving licences. (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry: Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal: .9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains vailid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place on 28.4.1995. As on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident. .10. In Swaran Singh (supra), whereupon the learned Counsel appearing on behalf of the appellants relied upon, it is stated: 45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry. 46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry. 11. This aspect of the matter is now covered by a decision of this Court in National Insurance Company v. Kusum Rai and Ors. AIR2006SC3440 , wherein this Court referring to Swaran Singh (supra) opined: 14. 11. This aspect of the matter is now covered by a decision of this Court in National Insurance Company v. Kusum Rai and Ors. AIR2006SC3440 , wherein this Court referring to Swaran Singh (supra) opined: 14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. 6. In the light of the aforesaid legal position, I am of the considered view that the order of the Tribunal so far it has denied the recovery rights to the appellant to recover the award amount from the owner of the offending vehicle is set aside. The present appeal is allowed to the extent of granting recovery rights to the appellant to recover the award amount with upto date interest after its payment in favour of the claimants in terms of the impugned Award. 7. With these directions, the appeal is disposed of.