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2019 DIGILAW 249 (JK)

BIMLA DEVI v. SONIKA SHARMA

2019-04-25

SANJEEV KUMAR

body2019
JUDGMENT : 1. The instant appeal has been filed by the injured, Baldev Singh, who has expired during the pendency of this appeal. The legal representatives of late Shri Baldev Singh have been substituted in his place vide order dated 11.12.2014. 2. This appeal has been directed against the order dated 22.10.2008 passed by the Motor Accident Claims Tribunal, Udhampur ( for brevity, the Tribunal) in file No. 77/Claims, titled, Baldev Singh vs. Miss Sonika Sharma and others. Injured, Baldev Singh, predecessor-in-interest of the petitioners has been held to be entitled to a sum of Rs. 2,85,000/-. The claim petition, which was filed by late Sh. Baldev Singh before the Tribunal was contested by respondent No. 3 only, whereas respondent Nos. 1 & 2 were proceeded ex parte by the Tribunal. On the basis of the pleadings of the parties, the Tribunal framed the following issues:- "1. Whether the petitioner received injured in an accident, caused by rash and negligent driving of vehicle/ Bus No. 9535-JKS which was coming from Ramnagar side and it the scooter of the petitioner on 18.09. 2003 at Ritti Bridge by the respondent No. 2 owned by respondent no. 1 and insured by respondent No. 3? If so to what extent? O. P. P. 2 In case of proof of issue No. 1 whether the petitioner is entitled to receive compensation, if so, to what extent and from whom? O.P.P 3. Whether the driver of the offending vehicle was not holding a valid and effecting driving licence, rout permit, fitness and R/C at the time of accident, as such, the respondent No. 3 is not entitled to indemnify the owner of the offending vehicle ?OPR3 4. Relief." 3. Issue No. 1 was proved in favour of the injured-claimant and accordingly, he was found to be entitled compensation to the tune of Rs. 2,85,000/-. So far as issue No. 3 is concerned, the Tribunal found that the driver of the offending vehicle, a heavy transport vehicle, was holding driving licence for driving only light motor vehicle. The Tribunal, therefore, held that since the owner of the vehicle, the insured, had handed over the offending vehicle to respondent No. 2- driver, who admittedly was not in possession of a driving licence authorizing him to drive a heavy motor vehicle, as such, he shall be deemed to have willfully violated the terms and conditions of the insurance policy. The Tribunal, therefore, held that since the owner of the vehicle, the insured, had handed over the offending vehicle to respondent No. 2- driver, who admittedly was not in possession of a driving licence authorizing him to drive a heavy motor vehicle, as such, he shall be deemed to have willfully violated the terms and conditions of the insurance policy. It is on that analogy, as well as, relying upon the various decisions of the Supreme Court, the Tribunal held that the insurance company was absolved of its liability to indemnify the owner and directed that the award shall be satisfied by the owner. It is this finding of the Tribunal on issue No. 3 the appellant is, in particular, aggrieved of. 4. Learned counsel for the appellant submits that in terms of Section 147 of the Motor Vehicle Act, 1988 ( for brevity, the Act ), even if the insurance company disputes the licence of the driver, it has to pay the compensation to the third party, though it may recover the same from the owner of the offending vehicle. Reliance in this regard has been placed by the learned counsel for the appellant on the judgment of the Supreme Court rendered in Kusum Lata and others vs. Satbir and others, 2011 (3) SCC 646 . 5. Per contra, learned counsel for the respondent No. 3-insurance company submits that once it is established that the owner has willfully violated the terms and conditions of the insurance policy, the insurance company would be absolved of its liability to identify the insured and pay the compensation to the third party. He further submits that on the basis of the evidence adduced by the parties, the Tribunal has come to the conclusion that the owner, despite being aware of the fact that the driver was possessing licence to drive light motor vehicle only, yet entrusted him the heavy transport vehicle and has, thus, willfully acted in violation of the terms and conditions of the insurance policy. 6. Having heard learned counsel for the parties and perused the record, it would be necessary to set out the relevant provisions of Section 149 of the Act, which reads as under:- 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. 6. Having heard learned counsel for the parties and perused the record, it would be necessary to set out the relevant provisions of Section 149 of the Act, which reads as under:- 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks. (1) If, after a certificate of insurance has been issued under sub- section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (l) of section 147 (being a liability covered by the terms of the policy) 1[or under the provisions of section 163A] is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments." 7. From the reading of the provisions of Section 149 of the Act alongwith Section 147, only conclusion that can be deducible is that even if the insurance company disputes the licence of the driver or proves that the driver was not holding the driving licence to drive the heavy transport vehicle, has to pay the compensation to the third party, though it may recover the same from the owner. This position was affirmed by a three judge bench of the Supreme Court in the case reported as National Insurance Co. limited vs. swarn Singh and others, (2004) SCC 297. 8. In view of the settled legal position, I am inclined to accept the arguments of the learned counsel for the appellant that the Tribunal has committed an error of law by absolving the insurance company of its liability to indemnify the insured and pay the compensation to the injured. 9. Accordingly, this appeal is allowed to the extent that the award amount shall be satisfied by the insurance company. 9. Accordingly, this appeal is allowed to the extent that the award amount shall be satisfied by the insurance company. However, the insurance company shall be entitled to recover the same from the owner of the vehicle. 10. The appeal is disposed of accordingly.