NATIONAL INSURANCE CO LTD Vs. MUKHTA

JUDGEMENT

(1.) THIS is an appeal of Insurance Company against the judgment and award of Motor Accident Claims Tribunal Pulwama dated 4th of September 2002, whereby the respondents 1 to 4 who were claimants before the Tribunal have been awarded compensation to the tune of Rs. 75,000 minus interim relief with simple interest at the rate 9% per annum till the final realisation, on account of the death caused of the deceased Ali Mohd Bhat who was hit by offending vehicle truck bearing registration No. 5572/JKP at wantipora insured with the appellant and rashly and negligently was driven by respondent No. 5 the driver. The respondents 6 and 7 have been shown to be owner and registered owner respectively. The amount of compensation awarded has been ordered by the Tribunal to be paid by the appellant Insurance Company. Before the Tribunal it was pleaded by the appellant Insurance company that the driver of the vehicle was not holding a valid licence and therefore there being violation of Insurance policy, the insurer was not liable to indemnify the owner by paying the compensation to the claimants. Ld. Tribunal in this behalf framed an issue for adjudication and has decided the issue (Issue No. 3) in favour of Insurance company and against the respondents owner and driver and the claimants. However by relying upon the judgment of the Apex Court reported in AIR 2000 SC 1419 held the Insurance company the appellant liable to pay compensation to the 3rd party and also held that insurer to be entitled to recover the said amount of money from the insured i.e. the owner of the offending vehicle as also driver thereof.

(2.) THE appellant Insurance company in this appeal has challenged the award of the Tribunal on two counts;

(3.) I have heard LC for the appellant and the Ld. counsel for the claimants/respondents 1 to 4. The driver and the owner respondents 5 to 7 have not Chosen to appear and contest the appeal. The Insurer/appellant cannot be allowed to maintain the appeal on the question of quantum as it has not contested the award on merits before the Tribunal after obtaining leave under section 170 of M.V. Act, in view of the law laid down by the Honble Supreme Court in AIR 2002 SC 3350, in which it has been held: