UNITED INDIA INSURANCE CO LTD Vs. MUJIBUN NISA

JUDGEMENT

(1.) UNITED India Insurance Co. Ltd. has preferred this appeal against the judgment and award dated 8.3.99 passed by the 4th Motor Accident Claims Tribunal, Puri in MACT Misc. Case No. 434/550 of 1993/1990 whereunder the Tribunal awarded a compensation of Rs. 1,18,000/ -to the claimant -respondents 1 to 4 along with interest at the rate of 12% per annum from the date of the claim, i.e. 20.6.90 till realization.

(2.) THE gravamen of the submission of Mr. A. K. Mohanty, learned counsel appearing for the appellant is with regard to the validity of the driving licence of the driver Banshidhar Rout, who was driving the offending vehicle, i.e. Standard 20 vehicle bearing registration No. OAC 1271 at the time of accident. It is contended by Mr. Mohanty that though it was pleaded by the appellant -insurer that the driver of the offending vehicle did not possess an effective driving licence and thus there was violation of the policy conditions for which the insurer cannot be held liable to pay the compensation, if any, awarded against the owner of the vehicle, but the said question was not determined by the learned Tribunal below.

(3.) SINCE the only contention raised by the appellant in this appeal is with regard to the validity of the driving licence, applying the principles as laid down in the decisions reported in (2001) 4 SCC 342 (New India Assurance Co. Simla v. Kamala and Ors.) and (2003) 3 SCC 338 (United India Insurance Co. Ltd. v. Lehru and Ors.) this Court is of the view that the insurer -appellant cannot avoid its liability, on the ground of the driver of the offending vehicle having an ineffective driving licence, towards the claimants who are third parties, however, it will be open for the appellant -insurer to raise the question of validity of the driving licence and infraction of the terms of the policy before the Tribunal below and the learned Tribunal, keeping in view the ratio in the decision reported in (2004) 1 Supreme 243 (National Insurance Co. Ltd. v. Swaran Singh and Ors.) should come to a finding as to whether the appellant -insurer has established 'breach' on the part of the owner of the vehicle of the policy conditions by applying 'the rule of main purpose' and the concept of 'fundamental breach' and in the event it is proved that the insurer (owner) did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver, it can be directed that the appellant -insurer will recover the amount paid to the claimants, from the owner.