ORIENTAL INSURANCE CO LTD Vs. KANDHILAL

JUDGEMENT

(1.) THIS appeal has been preferred by the insurer aggrieved by an award dated 28. 1. 2002 passed by Eighth motor Accidents Claims Tribunal, Jabalpur in M. V. C. No. 236 of 2000.

(2.) THE claimants also preferred Miscellaneous appeal No. 623 of 2002 that has been decided as per order dated 20. 2. 2003 passed by Division Bench of this court enhancing the compensation to Rs. 2,00,000. It was ordered that compensation shall be paid by the insurer. None was present on behalf of the insurer in the appeal, however, as held by this court compensation has been enhanced and recovery was permitted through the insurer. In all fairness, it ought to have been pointed out by the claimants that another appeal filed by the insurer was pending in this court with respect to assailing its liability to make the payment of compensation. However, as this question was not raised while deciding the appeal filed by claimants, there is no bar to hear this appeal to decide the question of liability of insurer in case there was any violation of policy of insurance.

(3.) MR. N. S. Ruprah, learned counsel for insurer, has not assailed the question of compensation. His submission is that as the driver was not holding valid and effective driving licence, whatever compensation has been determined, should be permitted to be recovered from the owner in case it is recovered from the insurer. He has submitted that insurer had called the driver so as to depose, bailable warrant was also issued but he did not turn up to depose that he was holding any licence. In the circumstances, insurer has examined Y. N. Datta, an Investigator. He has stated that he was appointed by the insurer in the criminal case, driving licence was not seized by the police, he had visited the house of Rajesh rao twice for obtaining driving licence but driving licence was not given to him. Owner refused to handover the driving licence to him. Insurer had also issued a notice, Exh. D2 to Rajesh Rao to produce driving licence and other papers but still driving licence was not produced, thus, insurer could not have been held liable to make payment of compensation. Liberty ought to have been granted to recover the amount from the owner as per decision of the Apex Court in Pramod Kumar Agrawal v. Mushtari Begum, 2004 ACJ 1903 (SC ).