Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 204 (ORI)

UNITED INDIA INSURANCE CO. LTD. v. MUJIBUN NISA

2004-04-19

M.M.DAS

body2004
JUDGMENT : M.M. Das, J. - United India Insurance Co. Ltd. has preferred this appeal against the judgment and award dated 8.3.99 passed by the 4th Motor Accident Claims Tribunal, Puri in MACT Misc. Case No. 434/550 of 1993/1990 whereunder the Tribunal awarded a compensation of Rs. 1,18,000/-to the claimant-respondents 1 to 4 along with interest at the rate of 12% per annum from the date of the claim, i.e. 20.6.90 till realization. 2. The gravamen of the submission of Mr. A. K. Mohanty, learned counsel appearing for the appellant is with regard to the validity of the driving licence of the driver Banshidhar Rout, who was driving the offending vehicle, i.e. Standard 20 vehicle bearing registration No. OAC 1271 at the time of accident. It is contended by Mr. Mohanty that though it was pleaded by the appellant-insurer that the driver of the offending vehicle did not possess an effective driving licence and thus there was violation of the policy conditions for which the insurer cannot be held liable to pay the compensation, if any, awarded against the owner of the vehicle, but the said question was not determined by the learned Tribunal below. 3. Learned Advocate for the claimant-respondents submitted that even conceding for the sake of argument that there was no effective/valid driving licence of the driver of the offending vehicle on the date and at the time of accident, the appellant-insurer cannot be exonerated from its liability to pay the compensation as awarded to the claimants who are third parties to the contract of insurance. 4. Since the only contention raised by the appellant in this appeal is with regard to the validity of the driving licence, applying the principles as laid down in the decisions reported in New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., and United India Insurance Company Ltd. Vs. Lehru and Others, this Court is of the view that the insurer-appellant cannot avoid its liability, on the ground of the driver of the offending vehicle having an ineffective driving licence, towards the claimants who are third parties, however, it will be open for the appellant-insurer to raise the question of validity of the driving licence and infraction of the terms of the policy before the Tribunal below and the learned Tribunal, keeping in view the ratio in the decision reported in (2004) 1 SC 243 (National Insurance Co. Ltd. v. Swaran Singh and Ors.) should come to a finding as to whether the appellant-insurer has established "breach" on the part of the owner of the vehicle of the policy conditions by applying "the rule of main purpose" and the concept of "fundamental breach" and in the event it is proved that the insurer (owner) did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver, it can be directed that the appellant-insurer will recover the amount paid to the claimants, from the owner. 5. With the above observation, the impugned judgment is confirmed, but the case is remanded back to the Tribunal below with a direction that the appellant would be given an opportunity to prove that there has been breach of policy condition as observed above. The Tribunal is further directed that before hearing the case on this question, the owner of the vehicle should be given notice of such hearing. The Tribunal thereafter should verify as to whether the appellant-insurer has proved its case regarding breach of policy conditions and if so direct that the amount paid by the appellant should be recovered from the owner as per law. The claimants, however, will not be required to take part in the hearing of the case, for the limited purpose as mentioned above. The appellant is directed to deposit the entire amount of compensation along with interest as awarded in the impugned judgment, before the Tribunal below and on such deposit the Tribunal will disburse the same to the claimants as per the directions given in the impugned judgment/award. 6. With the above observation/direction the appeal is remanded to the Tribunal below for fresh hearing and disposal according to law. Ordered accordingly, case remanded.