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2008 DIGILAW 497 (JK)

National Insurance Co. Ltd. v. Mohd. Shaban Dar

2008-12-18

MANSOOR AHMAD MIR

body2008
1. This appeal is directed against the order dated 7th March, 2007 passed by Motor Accident Claims Tribunal (MACT), Pulwama in execution petition titled Haji Mohammad Shaban Dar & ors. `Singara Singh and Ors., whereby the appellants-insurer came to be directed to satisfy the award with interest and recover the same from owner-driver on the grounds taken in the appeal. 2. The question involved is whether Motor Accident Claims Tribunal in the execution proceedings can modify the award and direct the insurer to satisfy the award with a right to recover despite of the fact that when no such direction is contained in the award passed in the main claim petition? 3. In order to decide the question it is necessary to give the brief facts of the case which have given birth to the instant appeal. 4. Claimants-respondent Nos. 1 to 3 filed a claim petition before the Motor Accident Claims Tribunal came to be allowed vide judgment/award dated 26th October, 1999. Neither the claimants-award holders nor the driver/owner-insured have questioned the said award and has attained finality. The claimants respondent No. 1 to 3 filed the execution petition before the Motor Accident Claims Tribunal, Pulwama came to be transferred by this court to the Motor Accident Claims tribunal, Srinagar. During the pendency of the execution petition before the MACT, Srinagar it appears that claimants-award holders moved an application before the tribunal, Srinagar for direction to recover he awarded amount from the insurer-appellant. The tribunal granted the application and directed the insurer to pay the amount with a right of recovery. 5. Admittedly, no judgment/award came to be passed against the insurer-appellant but came to be exonerated. In terms of the impugned order the award came to modified. On the face of it, it is illegal and merits to be set aside for the following reasons. 6. Chapter-XII contained in the The Motor Vehicles Act, 1988 in short the Act deals with Claims Tribunals and provides how claim petition is to be filed, what is the procedure to be followed by the tribunal and how award is to be passed. 7. Section 168 provides how award is to be passed and who are the persons entitled to compensation. It specifically provides that Claims Tribunal has to specify the amount which is to be paid by the insurer or owner/driver of the vehicle. 7. Section 168 provides how award is to be passed and who are the persons entitled to compensation. It specifically provides that Claims Tribunal has to specify the amount which is to be paid by the insurer or owner/driver of the vehicle. It is apt to reproduce sub clause (1) of Section (168) herein: On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement or any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter-X. 8. Thus tribunal has to specify in its award that who is entitled to compensation, who is to be saddled with the liability, whether owner/insured or insurer is to be saddled with liability. 9. No such provision is contained in the Act or in the rules which provides that final award can be modified during the execution proceedings on any motion moved by interested/aggrieved party(ies). 10. It provides that if any person is aggrieved, he can assail the award interms of Section-173 of the Act. Section 174 provides how awarded amount is to be recovered. 11. Section 149 of the Act provides that it is the duty of the insurer to satisfy the award but subject to the defence/defence(s) contained in it. The defence/defence(s) can be used as a weapon to avoid the liability. In this background, tribunal has to record and specify who has to satisfy the award while passing the award. 12. 11. Section 149 of the Act provides that it is the duty of the insurer to satisfy the award but subject to the defence/defence(s) contained in it. The defence/defence(s) can be used as a weapon to avoid the liability. In this background, tribunal has to record and specify who has to satisfy the award while passing the award. 12. In terms of section 149 of the Act insurer can raise defence contained in the said section and if it discharges onus, then it cannot be saddled with liability and it is for the insured-owner to plead and prove that he has discharged his duties and has not committed any willful default. Apex court in a case tited as United India Insurance Co. Ltd. `Rakesh Kumar Arora, 2008(7) Supreme 343, held that if the driver is not having valid license, insurer is not liable to pay compensation and it is not for the insurer to prove breach of any of the conditions of the contract of insurance by the insured. It is apt to reproduce para 17 and 21 herein: 17. The learned single Judge as also the Division bench of the High Court did not put unto themselves a correct question of law. They proceeded on a wrong premise that it was for the Insurance Company to prove breach of conditions of the contract of insurance. 21. In view of the authoritative pronouncement of this Court as noticed herein-before the impugned judgment cannot be sustained. It is set aside accordingly and that of the learned Tribunal is resorted. However, keeping in view the admitted fact that as no stay had been granted by the High Court the appellant has deposited the entire amount which has since been withdrawn by the claimant-respondents we direct that the appellant shall be entitled to recover the amount in question from the owner of the vehicle, namely respondent No. 1. 13. Apex Court in another case titled as National Insurance Co. Ltd. `Vidhyadhar Mahariwala & Ors., 2008 (7) Supreme 89, held that if insurer proves that driver was not having a valid license on the date of occurrence/accident, insurance company is not to be saddled with liability and it is open to the claimant to recover the amount from owner-insured. It is apt to reproduce para-2 and para-11 of herein: 2. Ltd. `Vidhyadhar Mahariwala & Ors., 2008 (7) Supreme 89, held that if insurer proves that driver was not having a valid license on the date of occurrence/accident, insurance company is not to be saddled with liability and it is open to the claimant to recover the amount from owner-insured. It is apt to reproduce para-2 and para-11 of herein: 2. Challenge in this appeal is to the judgment of a learned Single Judge of the Rajasthan High Court at Jaipur dismissing the appeal filed by the appellant under Section 173 of the Motor Vehicles Act, 1988 (in short the Act). Challenge in the appeal was to the award made by the Motor Claims Appellate Tribunal, Ratangarh (Churu) (in short MACT) in Claim Case No. 89 of 2004. By the said award, a sum of Rs. 4,03,650/- was awarded to the claimant-respondent No. 1 in the appeal. The dispute related to the rejection of appellants claim for exoneration on the ground of violation of policy condition. It was pointed out that the driving license of the driver of the offending vehicle was not in force on the date of accident. 11. In Ishwar Chandras case (supra) the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimants to recover the amount from respondent No.2. 14. In this case tribunal held vide its award that driver was having fake license and accordingly exonerated insurer-appellant and the award attain finality. 15. Viewed, thus the impugned order is set-aside and application moved by the claimant/award holder is dismissed. The execution petition to come up before the tribunal on 29-12-2008 and the tribunal is directed to decide the execution petition as early as possible. Send down the record along with copy of this judgment.