NATIONAL INSURANCE CO LTD Vs. GULZARA

JUDGEMENT

(1.) APPELLANT through this appeal seeks to challenge the award passed by Motor Accident Claims Tribunal, Srinagar dated 27.9.2002, whereby compensation of Rs. 1,30,000 with 9% interest from the date of application till its final realization minus interim relief of 15000 has been awarded in favour of respondent no.1 on account of accident death of her daughter caused in the accident which occurred due to rash and negligent driving of vehicle no. JKF/690 Tata Mini Bus by respondent No.

(2.) BY the award, the appellant Insurance Company has been saddled with the liability to pay the amount of compensation to the claimant. However, despite the fact that while returning the finding on issue No. 3 that Driver of the vehicle was not holding a valid licence, the learned Tribunal by its impugned award absolved the liability of the owner to pay back the amount of compensation to the insurer which the insurer was to pay to the claimant. 2. The learned counsel for the appellant argued at the bar that the Insurance Company is not liable to pay the amount of compensation to the claimant because the Driver of the vehicle was not holding a valid driving licence. There is no force in this argument, in view of the law laid down by Honble Supreme Court in case reported in AIR 2001 SC 1419 in which their Lordships have held that the insurer is liable to pay the amount of compensation to the claimants. However, in turn it is entitled to recover that amount from the owner, if, there is any breach of Insurance Policy it has been held: - - "The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of policy condition. As we have not decided on that contention if is open to the insured to raise it before the Claims Tribunal. In the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants -third parties) from the insured person. We may point out that as per the order passed by this Court on 6.3.2000, the appellant Insurance Company was directed to pay the award amount to the claimants. We are told that the amount was paid by the appellant to the claimants. Now the Claims Tribunal has to decide the next question whether the insurance company is entitled to recover that amount from the owner of the vehicle on account of the vehicle being driven by a person who had no valid licence to drive the vehicle. For that purpose we remit the case to the Claims Tribunal. An opportunity shall be afforded to the parties concerned for adducing evidence in that regard. We make it clear that the claimants shall not be bothered during the remaining part of the proceedings."

(3.) THEREFORE , the appellant cannot dispute its liability to pay the amount of compensation to the claimant. As such the appeal is not maintainable. However, the appeal against the owner and the Driver on the question whether there is any breach of policy so as to entitled the appellant company to recover the amount of compensation to be paid by it to the claimant is found to be maintainable and as such the appeal is admitted against the owner and the Driver only.