ORIENTAL INSURANCE COMPANY LIMITED Vs. BIRBAL GUDADJI SURVASIYA

JUDGEMENT

(1.) This matter has been listed under the caption "For Final Disposal".

(2.) Ms.Anisha Didwania, learned counsel for the Appellant would submit that the findings of the Tribunal that the witness of the Insurance Company was not sure that the driver of the motor-cycle was not having valid driving license at the relevant time is erroneous in as much as the driver was in fact not having valid driving license as per the charge-sheet and therefore, there is a breach of the policy on page 28 of the appeal. Learned counsel would submit that therefore, the order of joint and several liability passed by the Tribunal should be in view of the decision of the Supreme Court in the case of National Insurance Company Limited Vs. Swaran Singh and ors.,(2004) 3 Supreme Court Cases 297. be modified to a "pay and recover" order. Learned counsel also refers to the decision of the Supreme Court in the case of Shamanna and another Vs. Divisional Manager, Oriental Insurance Company Limited and ors.,(2018) 9 Supreme Court Cases 650. in support of her case and submits that in that case also the Supreme Court following the decision in the case of National Insurance Company Limited Vs. Swaran Singh and ors. (supra) had observed that in case of third party risks, the insurer had to indemnify the compensation amount payable to the third party and the Insurance Company may recover the same from the insured. Learned counsel would submit that the doctrine of pay and recover was considered by the Supreme Court in the case of National Insurance Company Limited Vs. Swaran Singh and ors. (supra) wherein the Supreme Court had examined the liability of the Insurance Company in cases of the breach of policy conditions due to disqualifications of the driver or invalid driving license of the driver and had held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the Insurance Company may recover the same from the insurer. Learned counsel for the Appellant would submit that this is a similar case where there has been a breach of policy conditions on account of the driver not having a valid driving license as has been admitted by the witness of the Appellant in his cross- examination and therefore, breach of the policy at page 28 has been proved. Learned counsel would therefore urge this court to pass a similar order of pay and recover in this case as well.

(3.) On the other hand, Ms.Chavan, learned counsel for the Respondents/Claimants would submit that in view of the law laid down in the case of National Insurance Company Limited Vs. Swaran Singh and ors. (supra) such an order can only be passed after examining the evidence from the record and proceedings as proving breach of policy conditions on the basis of invalid driving license of the driver cannot be proved on the mere absence or allegation of fake or invalid driving license as these defences are not in themselves available to the Insurance Company against either the insured or the third parties. Learned counsel would submit that as provided in paragraph No.103(iii), to avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. Learned counsel draws the attention of this court to the findings of the Tribunal on page 17 of the memorandum of the appeal and would submit that the Tribunal has after coming to the conclusion that the witness of the Appellant /Insurance Company was not sure on the point that the driver of the motor-cycle not having any valid driving license at the relevant time nor any notice was served on the owner, concluded that the owner and the Insurance Company of the offending vehicle would be jointly and severally liable to pay the compensation. Learned counsel would submit that therefore, it would be necessary to go through the record and proceedings before any order modifying the joint and several liability over to a pay and recover order.