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Rajasthan High Court · body

2012 DIGILAW 1038 (RAJ)

Oriental Insurance Co. Ltd. v. Banshi Lal

2012-04-23

MOHAMMAD RAFIQ

body2012
RAFIQ, J.—This appeal has been preferred by the appellant-Oriental Insurance Company Limited assailing the award of the Motor Accident Claims Tribunal, Beawar dated 9/7/1996 on the premise that the driver did not have valid license and that the tractor was insured for agriculture purposes with the risk of only driver and therefore the risk of the additional passenger i.e. deceased-Dhagruram, who was travelling in the tractor is not covered. Learned counsel for the appellant in this connection has relied on the judgments of Supreme Court in New India Assurance Co.Ltd. vs. Kusum & Ors. II (2010) ACC 518 (SC) = 2009(2) CCR 1316 (SC) = 2011(4) RLW 2816 (SC), National Insurance Co.Ltd. vs. Vidhyadhar Mahariwala and others : 2008 ACJ 2860 , Sardari and others vs. Sushil Kumar and others : 2008 ACJ 1307 and judgment of this Court in National Insurance Company vs. Om Prakash & Ors. : 2005(3) DNJ (Raj.) 1153. 2. Learned counsel for the claimant-respondents has opposed the appeal and argued that the the insurance company has been fastened with the liability to make payment of compensation because the tractor was insured. Even if it was insured for the agriculture purpose, but the insurance co. failed to prove that the driver did not have valid license. 3. Heard learned counsel for the parties, perused the impugned-award as well as the case law cited on the subject. 4. In order to test the arguments of the learned counsel for the appellant-insurance company in the light of the judgments of Supreme Court and this Court cited on the controversy involved in the matter, I would firstly like to deal with those case law. 5. In Kusum, their lordships while dealing with the question of driver did not possess valid license, held that in case, the driver did not have the valid license, it would be joint primary liability of the driver & owner to pay compensation. In terms of the Motor Vehicle Act, an owner of the vehicle has a duty to see that vehicle is driven by a person having a valid driving licence and instead and in place of insurer, owner of of vehicle shall be liable to satisfy the decree. Therefore, it would be travesty of justice, if Insurance Company is directed to pay amount of compensation and then to face the immense difficulties in executing a decree. 6. Therefore, it would be travesty of justice, if Insurance Company is directed to pay amount of compensation and then to face the immense difficulties in executing a decree. 6. In Vidhyadhar Mahariwala supra, Supreme Court while dealing with a case in which driving license of the driver was expired on the fateful day of accident while observing that gap in renewal of licence cannot be a ground for exoneration of the driver to make payment of compensation, held that insurance company was not liable to pay compensation. 7. In Sardari supra, while dealing with the similar question as above of driver not possessing the valid license held that owner of vehicle has a statutory obligation to see that driver of vehicle whom he authorised to drive holds a valid licence and therefore the insurance company was rightly exempted from the liability to make payment of compensation to the claimants. 8. This Court in Om Prakash supra while dealing with the question whether or not insurance company would be liable to pay compensation for the death occurred of a passenger travelling in trolley attached with the tractor, extra premium of which was not charged by the insurance company, held that the insurance company is not liable for payment of compensation while relying on the judgments of Supreme Court in New India Assurance Co.Ltd. vs. Asha Rani & Ors. : JT 2002 (10) SC 162 = RLW 2003(2) SC 213, Oriental Insurance Co.Ltd. vs. Devireddy Konda Reddy & Ors. : 2003(1) WLC (SC) Civil 283 and National Insurance Co.Ltd. vs. S.Chinnamma & Ors. : JT 2004(7) Supreme Court 167 in which the Supreme Court while accepting the special leave to appeal of the insurance companies exonerating them from the liability to make payment of compensation, held that the insurer and insured are bound by the conditions described in the insurance policy and insurer is not liable to the insured if there is violation of any breach of conditions. 9. Having heard learned counsel for the parties and considering the over all aspects of the matter, in my considered view, ratio of the aforesaid judgments is fully applicable to the facts of the present case. In view of the law settled by the Supreme Court in catena of judgments aforestated, therefore the appeal deserves to succeed. 10. In the result, the appeal is allowed. In view of the law settled by the Supreme Court in catena of judgments aforestated, therefore the appeal deserves to succeed. 10. In the result, the appeal is allowed. The award of the Motor Accident Claims Tribunal, Beawar dated 9/7/1996 is set-aside to the extent of holding the appellant-Oriental Insurance Company Ltd. liable to make payment of compensation to the claimants, which is exonerated from such liability. Owner of the vehicle is held liable for payment of compensation to the claimants. Record be sent back to the Tribunal forthwith.