TMI Blog2020 (3) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... iver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle was damaged. The driver of the vehicle, Dharmendra Singh Chauhan got an FIR registered with the police. The Respondent/ Insurance Company, on intimation having been given to them, appointed a spot surveyor, and also a regular surveyor to carry out survey in the matter, but the claim was rejected by them vide their letter dated 28.03.2011. The Respondent/ Insurance Company stated in the repudiation letter that the driver Dharmendra Singh Chauhan did not have a proper driving licence at the time of the accident. The licence produced by him, alleged to have been procured from the office of the licencing authority, Sheikh Sarai, Delhi could not be verified, as the concerned officer of the transport department returned their letter with the endorsement that the record pertaining to the said licence was not available. Alleging deficiency on the part of the Respondent/ Insurance Company, the complainant filed a consumer complaint, seeking directions to the Respondent/Insurance Company to pay the Insured declared value (IDV) i.e. a sum of ₹ 5,00,000/- alongwith interest @ 9% per annum from the date of filing the complaint till payment and also to pay a sum of ₹ 50,000/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l breach of the terms and conditions of the insurance policy in question and hence, the claim made by the Appellant/Complainant was not payable. Whereas, it is argued by the Appellant/ Complainant that at the time of employing the driver, the documents like driving licence etc. are generally checked but no one usually verifies the genuineness of the same. 7. Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149(2)(a)(ii) deals with the conditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is not duly licenced or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is not liable for compensation. In the instant case it is a matter of fact that no record of the licence bearing no. P03041288753070 was found with the licensing authority. 8. Having set forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation. 9. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh Ors. (SCC pp.341, para 110) that, 110. (iii) Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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