NATIONAL INSURANCE CO. LTD. Vs. MASTER AAKASH CHAURASIYA

JUDGEMENT

(1.) This Miscellaneous Appeal has been filed by the appellant/Insurance Company being aggrieved by the award dated 24.02.2009 passed by the Court of Second Additional Judge to First MACT, Gwalior, whereby the Claims Tribunal has directed the Insurance Company to pay the amount of compensation and recover the same from the owner and driver of the vehicle.

(2.) It is the contention of learned counsel for the appellant that this pay and recover order is incorrect inasmuch as the vehicle was admittedly driven by a minor who was not having a valid driving license and therefore, Insurance Company has no liability to pay the compensation. He has placed reliance on the judgment of the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh & Others as reported in 2004 ACJ 1 and has relied on Para-77 of the judgment, wherein it has been held that the owner of a motor vehicle in terms of Section 5 of the Act is responsible to see that no vehicle is driven by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any license and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in it's defence and avoid liability. Thus, placing reliance on such proposition, he submits that the order for pay and recover suffers from infirmity and deserves to be set-aside. He has also placed reliance on the judgment of the Supreme Court in the case of United India Insurance Co. Ltd. v. Rakesh Kumar Arora & Others as reported in 2008 ACJ 2855.

(3.) Learned counsel for respondents No. 6 and 7, on the other hand has placed reliance on this very judgment i.e. of Swaran Singh and referring to Para- 102(iii) submits that the breach of policy conditions, i.e. disqualification of driver or invalid driving license of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid it's liability towards 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 use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.