NEW INDIA ASSURANCE CO LTD Vs. MAGI

JUDGEMENT

(1.) These appeals arise out of the award of MACT, Bali dated 17/8/1999 deciding case No. 2/1993 (Magi & ors. vs. Usman Khan & Ors.) and other connected claim petitions. In an accident, which took place on 30/10/1992 bus No. RPA 8555 carrying 30-40 passengers going from Pindwara to Sadri, at about 12.15 pm was hit by another bus No. RJ-22 P 0089 (Old No. PAB 3195) belonging to G.N. Travels and by the said accident passengers sitting in bus No. RPA 8555 suffered injuries. The present appellant is insurer of offending vehicle - bus No. RJ 22 P 0089 (Old No. PAB 3195).

(2.) The main contention of learned counsel for the appellant is that the driver of the offending vehicle Usman Khan son of Shri Fakir Mohd.-respondent No. 1 was not having a valid driving license at the time of accident as his license was only to drive a light motor vehicle, whereas, the bus in question was a heavy motor vehicle. The said license is on record as Ex.D/2. He submitted that there was, thus, a violation of terms of policy and, therefore, the appellant Insurance Company was not liable to pay the compensation determined by the Tribunal. He relied upon the following judgments in support of his submissions: (i) National Insurance Co. Ltd. vs. Kusum Rai & Ors. - 2006 ACJ 1336; (ii) Oriental Insurance Co. Ltd. vs. Syed Ibrahim & Ors. - 2007 ACJ 2816; (iii) New India Assurance Co. Ltd. vs. Prabhu Lal - 2008 ACJ 627; (iv) Bhuwan Singh vs. M/s Oriental Insurance Co. Ltd. & Anr. -MACD 2009 (SC) 168& (v) New India Assurance Co. Ltd. vs. Suresh Chandra Agarwal - 2009 (3) T.A.C. 586 (S.C).

(3.) Relying on the aforesaid decisions he submitted that the Hon'ble Apex Court in number of decisions now held that where the driver of the offending vehicle is not having a valid driving license, the Insurance Company is not liable to pay compensation. He also submitted that the earlier trend of the Courts to direct the Insurance Company to pay the compensation first even if the driver was not having a valid driving license and then to recover the said compensation paid to the claimants from the owner of the insured vehicle has also changed and the recent trend of the decisions of Apex Court is to completely exonerate the Insurance Company from payment of compensation in such cases where the driver does not have a valid driving license and leave it for the claimants to recover the amount of compensation in question from the owner of the offending vehicle. He also drew the attention of the Court towards the fact that no counsel is appearing on behalf of owner of the vehicle despite service of notices.