decision of our own High Court given in cases Oriental Insurance Co. vs. Arun Saha III (2008) ACC 218 and National Insurance Co. vs. Nirabjit Kaur IV (2008) ACC 136. In such circumstances, it cannot be held that respondent no. 2 intentionally or knowingly had allowed respondent no. 1 to drive the offending truck and he was having full knowledge of fact of cancellation of driving license of the respondent no. 1. It was not the duty of the respondent no. 2 to go to the Licensing Authority regularly to check the status of the driving license of respondent no. 1 because when he had employed respondent no. 1, his driving license was valid and proper and he was competent to drive the offending truck. In this regard some reliance can be placed upon the decision of Supreme Court given in case National Insurance Co. vs. Geeta Bhat II (2008) ACC 341. Even if for the sake of arguments, it is presumed that respondent no. 1 was having knowledge of cancellation of his license and still he drove the offending truck which amounts to the breach of terms of insurance policy, then also that was not willful default or breach on the part of respondent no. 2. Respondent no. 3 was required to prove through cogent and convincing evidence that respondent no. 2 had intentionally committed breach of terms of insurance policy and he was having full knowledge of cancellation of driving license of respondent no. 1 but still took risk and allowed him to drive the offending truck on the date of accident. In this regard, R3W2 official of insurance company has not alleged any single word. Accordingly, respondent no. 2 cannot be held liable in any manner and respondent no. 3 insurance company has to indemnify him. No recovery rights can be given to respondent no. 3 in the present facts and circumstance. Mere issuing of notice under Order 12 Rule 8 CPC is of no consequences. Keeping in view the existence of valid insurance policy, respondent no. 3 alone becomes liable to pay entire compensation amount.”
