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Rajasthan High Court · body

2011 DIGILAW 2619 (RAJ)

National Insurance Co. Ltd. v. Kamla Bai

2011-11-29

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—All these appeals have been preferred by the appellant insurance company aggrieved by the award of the Motor Accident Claims Tribunal dated 29.5.2002 by which the claim petition filed by the claimants were allowed and the non-claimants and insurance company were jointly and severally held liable to pay compensation to the claimants. The insurance company has come in appeal on the premise that despite finding on issue No.3 regarding violation of terms and conditions of insurance policy and having held that the driver was having licence to drive motor cycle with gear and light motor vehicle and that the offending vehicle that he was driving was a heavy passenger bus, the insurance company could not have been made liable to pay compensation. Learned counsel made reference to the definition of "driving licence" as given in Section 2(10) and Section 3 of the Motor Vehicles Act, 1988 to argue that a driver in the present case did not have any effective driving licence. Section 149(2)(a)(ii) specifically provides that the insurance company is entitled to defend itself by taking a statutory plea regarding a condition excluding driving by a named person or persons or by any person who is not duly licensed or by any person, who has been disqualified for holding or obtaining a driving licence during the period of disqualification. It has been contended that the Tribunal has not considered the judgment of United India Insurance Company Ltd. vs. Gyan Chand & Ors.- 1997(7) SCC 558 wherein a similar defence was held to be available to the insurance company. Reliance is also placed on division bench judgment of Mahesh Kumar & Anr. vs. Hari Shanker Patel & Ors.-2000(1) ACC page 266 wherein the offending vehicle was a Matador which was being used for transporting passengers and it was held that it was a transport vehicle under Section 2(47) because it was being used as a Public Service Vehicle for carrying passengers. There was no endorsement of authorisation of licensing authority on licence on the date of accident. There was therefore breach of terms of the insurance policy. It is therefore contended that the insurance company be exonerated from the liability or in the alternative recovery rights be given to the insurance company as against the respondent owner. 2. There was no endorsement of authorisation of licensing authority on licence on the date of accident. There was therefore breach of terms of the insurance policy. It is therefore contended that the insurance company be exonerated from the liability or in the alternative recovery rights be given to the insurance company as against the respondent owner. 2. Learned counsel for the respondents opposed the appeal and contended that the photo stat copy of the driving licence that was produced on record by the claimants clearly show that in the driving licence the words "motor cycle with gear", "light motor vehicle" and "heavy passenger motor vehicle" were ticked. The insurance company has to be therefore held liable because the learning licence clearly proved that the driver Prakash Chand was also had the licence to drive a heavy passenger motor vehicle. The appeal should therefore be dismissed. 3. On hearing learned counsel for the parties, I find that in the present case no interim order was passed in favour of appellant-insurance company and therefore pursuant to the award passed by the Tribunal, the awarded sum should have been disbursed to / received by the claimants. The insurance company is justified in contending that what was held proved by the Tribunal was that the driver Prakash Chand did not have valid licence to drive a heavy passenger motor vehicle i.e. a bus. Ex.NA-2, which has been proved by NAW-2 Ram Vilas Gupta, LDC of the office of the District Transport Office, Jhalawar who appeared before the Court along with original record to prove that driver had a licence to drive a `motor cycle with gear' and `light motor vehicle'. The original record was produced for perusal of the Court and the copy of the relevant page of the licence register was proved as Ex.NA-2 wherein there was no entry with regard to issuance of licence to the driver Prakash Chand to drive heavy passenger motor vehicle. The tick mark of this third entry in addition to entry with regard to `motor cycle with gear' and `light motor vehicle' has thus not been proved either by owner or driver of the vehicle. The tick mark of this third entry in addition to entry with regard to `motor cycle with gear' and `light motor vehicle' has thus not been proved either by owner or driver of the vehicle. Even otherwise, the driver/owner of the vehicle have not filed any appeal against the impugned award, although a finding against them has been recorded on this aspect and it has been directed that all the non-claimants i.e. appellant insurance company as well as owner of the driver shall be jointly and severally liable to pay the compensation. Moreover, as referred to above, in view of Section 149(2)(a)(iii), this statutory defence is available to the insurance company, which has been proved by the insurance company. Since in the present case, entire compensation has been disbursed to the claimants, the insurance company is set at liberty to recover the amount of compensation paid to the claimants from the owner of the vehicle. The appeal are accordingly disposed of.