NEW INDIA ASSURANCE CO LTD Vs. HARPAL

JUDGEMENT

(1.) Mr. Amit Paul, counsel appearing for the appellant contends that the appellant insurer is entitled to recovery rights from the insured as the insured has willfully breached the terms and conditions of the Insurance Policy on account of the fact that the owner had handed over the offending vehicle to the Mechanic who was a minor as on the date of the accident. Counsel, thus, contends that in such like cases, although there is a complete absolvement of the insurance company, yet at least, recovery rights to recover the award amount could have been granted by the Tribunal to the appellant insurance company.

(2.) Ms. Manjeet Chawla, counsel appearing for the claimants on the other hand states that there was no willful breach on the part of the insured as the brother of the owner who was accompanying the driver of the offending vehicle had contacted the workshop of one Mr. Ram Dass wherefrom mechanic Shri Kashmir Singh was sent to repair the vehicle. Counsel, thus, contends that there was no occasion for the deceased to have ascertained the age of the mechanic. Counsel further contends that it is a usual practice that once any vehicle is sent for repair to any workshop, mechanics do undertake test drive after repair and therefore, if any accident happens during the test drive by the mechanic, no violation can be attributed on the part of the insured to the terms and conditions of the Insurance Policy and therefore, counsel contends that the present appeal filed by the appellant is misconceived I have heard learned counsel for the parties and have perused the record.

(3.) That on the fateful day the offending tempo was being driven by Shri Nagender while he was going from Kirti Nagar to Jahangirpuri and on its way the tempo suffered break down near Jakhira chowk. The said driver Shri Nagender brought a mechanic Shri Kashmir Singh from the workshop of Shri Ram Dass and after tempo was repaired the said mechanic drove the tempo so as to take a test drive towards the workshop and on its way met with an accident. The said Kashmir Singh was apprehended from the spot and an FIR was registered against him. It is, therefore, not in dispute that the said mechanic was driving the tempo at the time of accident. Now the next question to be examined is whether Shri Kashmir Singh was a minor on the date of the accident or as to whether he was holding a valid driving licence to drive the tempo as on the date of the accident or not. Shri Kashmir Singh in his statement clearly stated that he was merely a mechanic and was not having any driving licence to drive the said vehicle. He even did not knew driving and therefore, there was no question of his driving the tempo on the date of the accident. No suggestion has been put to the said witness by the insurance company that he was a minor as on the date of the accident or he was told by the insured to drive the tempo on his way back to workshop after repairing the said vehicle. It is no more res integra to grant recovery rights to the insurer, there has to be a willful breach of the terms and conditions of the insurance policy by the insured. It is quite common that the auto mechanic undertakes test drive after carrying out the repair of the vehicle and the presumption is that once a mechanic undertakes such test drive then such a mechanic must have the requisite competence to drive such a vehicle. In any event of the matter, insured/owner of the offending vehicle could not have known this fact that the said mechanic was a minor as on the date of the accident and there is no evidence on record that the insured had permitted the vehicle to be driven by the said mechanic who as per the appellant was an unlicensed driver and therefore, it cannot be said that the insured had committed breach of any specified condition of the insurance policy so as to entitle the appellant insurer to take the benefit of Section 96(2) of the Motor Vehicles Act.