PANCHEI BEWA Vs. GOURANGA CHARAN SWAIN

JUDGEMENT

(1.) THESE two appeals arise out of the common order dated 1.11.2001 passed by the 2nd Motor Accidents Claims Tribunal, Cuttack, in Misc. Case No. 994 of 1992. Hence, this judgment will govern both the cases.

(2.) THE fact of the case, in brief, is that on 6.10.92 at about 2.30 P. M. while one Surendra Kumar Mantri (deceased) was going towards Kujanga in his bicycle, the offending truck bearing registration No. ORY 5525 coming from Paradip side in a rash and negligent manner dashed against the deceased near Kujanga Post Office as a result of which he received severe injuries on his person. The deceased was removed to the hospital and on the way he succumbed to the injuries. The claimants, being the mother, brother and sister of the deceased have filed the petition claiming compensation for the death of the only earning member of their family.

(3.) IN M. A. No. 375 of 2002 the legality of the award passed against the Insurance Company is impugned on the ground of want of possession of a valid driving licence by the driver of the offending vehicle. It is contended that a specific plea having been taken in the written statement by the insurer that the driving licence seized during police investigation was found to have not been issued by the licensing authority, the impugned award cannot be sustained. Such contention does not hold good in the absence of clinching evidence in support of the plea of fake licence. In the decisionreported in AIR 2003 SC 1292 (United India Insurance v. Lehru), it has been categorically laid down by the apex Court that the Insurance Company cannot escape its liability towards third party on the ground that the driver had a fake licence. In order to avoid liability under Section 149(2)(a)(ii) of the Motor Vehicles Act, it must be shown that there is a breach on the part of the insured. The liability towards 3rd party cannot be avoided but the Insurance Company may recover the same from the insured on proof of the breach. Therefore, the only ground advanced by the Insurance Company in M. A. No. 375 of 2002 is devoid of merit and is not acceptable.