BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD Vs. USHA DEVI WIFE OF DEO NARAYAN PRASAD RESIDENT OF MOHALLA ANAND BAZAR

JUDGEMENT

(1.) This appeal is directed against the order of the award dated 20th of August, 2008 passed by Additional District Judge VI, Patna-cum-Motor Vehicle Claim Tribunal, Patna (hereinafter referred to as the "Tribunal") in Claim Case No. 74 of 2006 whereby award for Rs. 1,36,000/- as claimed, due to the accident of the Maruti Van bearing Registration No. BR-1P-4308 in which the claimant was the occupant of the said Maruti Van met with an accident with a Tanker bearing Registration No. UP-64B-2336 being driven rashly and negligently causing serious injury to the claimant as also other occupants of the Maruti Van. After completing necessary formalities, as required, the aforesaid claim case was filed. The owner and the driver of the offending Tanker did not appear to contest the claim. The appellant-Insurance Company, however, appeared and contested the claim on the ground that although the offending Tanker was insured with the appellant-Insurance Company. However, the Tanker had no valid permit and secondly, the driver of the Tanker had no license. The Tribunal upon considering the materials on the record and also taking into consideration that there is no driving license or road permit available on the record held that the driver of the offending Tanker was not having a valid license and road permit of the vehicle on the material date and time of the accident was also not available. The Tribunal upon such consideration, considered the claim and allowed the aforesaid claim directing for payment of Rs. 1,23,500/- after deducting the amount, amounting to Rs. 12,500/- which already paid by way of interim compensation. Mr. Ashok Priyadarshi, learned counsel for the appellant submits that although the offending Tanker was insured with the appellant-Insurance Company, however, on account of the violation of the terms and conditions of the policy i.e. the Tanker had no valid permit and the driver of the Tanker was also not having license and as such, the Insurance Company was not liable to pay the claim. It is further submitted that the Tribunal after having found that since the owner and the driver of the offending vehicle did not appear and contest the case and they were the most important persons to say as to whether there was any road permit and license. The Tribunal, accordingly, held that there was no driving license of the driver and the vehicle, in question, was having no valid road permit, In the above circumstances, the Tribunal ought to have allowed the claim against the owner or the driver of the offending Tanker and could not have directed for payment of the awarded amount to the Insurance Company, as the Tribunal was not possessed such power to direct the Insurance Company to pay and later on recover the amount from the owner/driver of the offending vehicle.

(2.) Mr. Ajay Kumar assisted by Shambhu Sharan Singh appearing for the respondents submits that it is not in dispute that the offending vehicle was insured with the appellant Insurance Company and accident took place causing injury to the occupants of the Maruti Van. It is further submitted that once it is found that the offending vehicle duly insured in such case the violation of the terms and conditions of the insurance policy, if any, that will not exonerate the Insurance Company. The Tribunal passed the award for payment to the claimant by Insurance Company however, in terms of the proviso to sub-section 4 of Section 149 of the Motor Vehicles Act, 1988 as well as sub-section 5 of the said section, it would appear that in case there is any violation of the terms and conditions of the policy in such circumstances any amount paid by the Insurance Company towards the discharge of any liability of the person which is covered by the policy of insurance would be recoverable by the Insurance Company from that person who has obtained the insurance cover.

(3.) Learned counsel for the United India Insurance Company appears and submits that the Maruti Van in question was insured with the respondent-Insurance Company.