Oriental Insurance Company Ltd. vs Legal Heirs of Decd. Devangbhai Shankerprasad Bhatt and Others

M.D. Shah, J.—This appeal has been filed by the original opponent No. 3-Oriental Insurance Company Ltd. under Sec. 173 of the Motor Vehicles Act 1988 being aggrieved and dissatisfied with the judgment and award dated 7-9-2012 passed by the Motor Accidents Claims Tribunal(Aux.), 4th Addl. District Judge, Nadiad, in MACP No. 832 of 2005. The claim petition has been filed by the heirs and legal representatives of deceased Devangkumar Shankarprasad Bhatt claiming compensation for death of the deceased which occurred on 14-2-1005 at about 10.00 p.m. on Vidhyanagar-Anand Road. It was inter alia contended that the deceased was walking on the road when he was knocked down by motor cycle No. GJ-11-N-2725 from behind causing fatal injuries to the deceased. After hearing the learned counsel appearing for the parties and considering the oral as well as documentary evidence on record, the impugned judgment and award was passed by the Tribunal.

I have heard learned advocates, Mr. Sunil Parikh for Mr. Rajni H. Mehta for the appellant-Insurance Company and Mr. Hiren M. Modi for the original claimants.

It is submitted by learned advocate for the appellant that the driver of the offending vehicle held only a learner''s license and did not hold a valid and effective license to drive the motor vehicle and, therefore, Insurance Company is not liable to pay any compensation. According to him, as per the amended provisions of Motor Vehicles Act, risk of such persons is not covered under the policy and, therefore, the Tribunal has committed error in fastening liability on the appellant. It is further submitted that even if this Hon''ble Court holds that the Insurance Company is liable, then, Insurance Company should be permitted to recover the said amount from the owner. In this connection, he has relied on a decision of Hon''ble Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

It is however submitted by learned advocate for the original claimants that after discussing oral as well as documentary evidence on record, impugned judgment and award has been rendered by the Tribunal by detailed reasons and same may not be interfered with by this Court in this appeal. He has also relied on the decision of the Hon''ble Supreme Court in Swaran Singh (supra).

This Court has gone through the impugned judgment and award passed by the Tribunal together with oral as well as documentary evidence on record as also the decisions relied on by the learned advocate for the appellant.

The only issue raised in this appeal is whether the Insurance Company is liable to pay compensation or not when the driver of the vehicle was holding only a learning license.

It is clear from the record that it is effectively proved by the Insurance Company that at the relevant time of incident driver of the vehicle was holding only a learner''s license and it is not a valid and effective driving license and it is a cl ear breach of condition of policy. The issue involved in these cases is squarely covered by the decision rendered in Swaran Singh (supra). It has been held in the said decision that it is an interse dispute between the insured and the insurer and insurance company is liable to satisfy the decree. It has been held in the said reported case in para 108 (viii), (ix) and (x) as under:

The summary of our findings to the various issues as raised in these petitions are as follows:

(i)....

xxxx xxxx xxxx

(viii) If a vehicle at the time of accident was driven by a person having a learner''s license, the insurance companies would be liable to satisfy the decree.

(ix) The claims tribunal constituted u/s 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.

(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner u/s 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.

It has been specifically held by the Hon''ble Supreme Court in the aforesaid reported case that if the vehicle was driven by a person holding learner''s license, insurance company would be liable to satisfy the decree. In the case on hand also, the driver of the vehicle was holding only a learner''s license and hence, in view of the aforesaid decision, the Insurance Company would be liable to satisfy the decree but the insurance company would be entitled to recover the amount from the owner of the vehicle.

Similar view has been reiterated by the Hon''ble Supreme Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, . In view of the above decision also, the appellant-insurance company would be liable to satisfy the decree but it would be entitled to recover the same from the insured. In view of the above, this Court is of the opinion that this appeal deserves to be allowed in part.

This appeal is partly allowed. The impugned judgment and award is modified to the extent that the appellant-Oriental Insurance Company is directed to satisfy the impugned decree, however, it shall be entitled to recover the same from the insured-owner of the vehicle. The remaining part of the impugned judgment and award would remain unaltered. Office to send back the records and proceedings, if any, forthwith.