New India Assurance Company Limited @APPELLANT@Hash Sardara Bibi

This appeal is directed against the judgment and award dated 19.04.2018 passed by the Motor Accident Claims Tribunal, Hanumangarh (‘the

Tribunal’), whereby the Tribunal has awarded a sum of Rs.3,24,500/- alongwith interest @ 9% p.a. from the date of application i.e. 24.06.2016 as

compensation to the claimant.

Application under Section 163-A of the Motor Vehicles Act, 1988 was filed by the claimant â€" Sardara Bibi with the averments that she was mother

of the deceased Allarakha @ Rajhe Khan; on 11.10.2015, Allarakha was driving the truck, when suddenly another truck came from the opposite

direction, resulting in the accident. Allarakha suffered grievous injuries, to which he succumbed on 12.10.2015.

The owner of the truck filed reply admitting the ownership of the truck and that the accident occurred from the said truck and indicated that the

vehicle was insured.

The Insurance Company filed its reply and submitted that the accident occurred on account of rash and negligent driving by deceased himself, he was

not third party and there was violation of policy conditions.

The tribunal framed five issues. On behalf of the claimant, two witnesses were examined and 11 documents were exhibited. On behalf of the

respondent, one witness was examined and 03 documents were exhibited.

After hearing the parties, the Tribunal came to the conclusion that the accident occurred by use of vehicle, resulting in injuries to Allarakha, to which

he succumbed.

While deciding the issue pertaining to liability of the insurance company, the plea raised by the insurance company that the driver was not in

possession of a valid and effective driving licence and that the truck had no permit, the Tribunal came to the conclusion that though no driving licence

was produced, however, the insurance company also did not undertake any inquiry in this regard and in so far as the absence of permit was

concerned, it was found that on the date of accident, the owner had no permit and found that there was violation of the policy condition. However, it

ordered the insurance company to pay the amount of compensation and recovery the same from the owner. Thereafter, the compensation was

assessed as Rs. 3,24,500/- and same was ordered to be paid with interest @ 9% p.a. from the date of application i.e. 24.06.2016.

It is submitted by learned counsel for the appellant Insurance Company that once the driving licence of the driver was not produced/the Tribunal came

to the conclusion that the vehicle was being plied without there being any permit, the Tribunal was not justified in directing for pay and recover. It was

submitted that the direction to pay and recover, is in violation of the settled legal position and therefore, the direction pertaining to pay and recover

deserves to be quashed and set-aside.

I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.

Irrespective of the material available on record and taking the finding of the Tribunal as recorded regarding the absence of the permit, the Hon’ble

Supreme Court in Amrit Paul Singh & Ors. v. TATA AIG General Insurance Co. Ltd. & Ors. : 2018 ACJ 1768 (SC) after referring to the judgment

in the case of National Insurance Co. Ltd. v. Swaran Singh : 2004 ACJ 1 (SC), has laid down that the direction to pay and recover is justified. It was

inter-alia laid down as under :-

“In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a

permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had

temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be

pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public

place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66.

The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation

of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh, 2004 ACJ 1 (SC) and Lakhmi Chand,

2016 ACJ 551 (SC), in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question

had no permit. It does not require the wisdom of the ‘Tripitaka’, that the existence of a permit of any nature is a matter of documentary

evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast

on the insurer. Therefore, the Tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the

claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are

in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.â€​

Regarding the absence of licence, though the Tribunal did not accept the plea raised by the appellant Insurance Company regarding absence of

licence, even if, the same is accepted, as laid down by the Hon’ble Supreme Court in the case of Pappu & Ors. v. Vinod Kumar Lamba & Anr.

:Â (2018) 3 SCC 208, even in case where the driver was not in possession of a valid driving licence, a direction to pay and recover can be made.

In view of the above legal position as laid down by the Hon’ble Supreme Court in the case of Amrit Paul Singh (supra) and Pappu (supra),

there is no substance in the submissions made by learned counsel for the appellant. The direction to pay and recover given by the Tribunal does not

call for any interference.

Consequently, there is no substance in the appeal and the same is, therefore, dismissed.