S.S.Sudhalkar, J. - (1.) This appeal is filed by the insurance company challenging the award of Motor Accidents Claims Tribunal (for short 'the Tribunal') by which it was also liable to pay the compensation to the claimants-respondents.
(2.) The appellant amongst other contentions has contended before the Tribunal that the driver of the vehicle involved in the accident was not having a valid driving licence. The Tribunal held that the driver was not having a valid driving licence for driving truck which falls under the category of heavy transport vehicle. The vehicle involved in the accident is a truck. After deciding that the driver was not having a valid driving licence for driving a truck, the Tribunal considered the question of liability of the appellant. The Tribunal of course held that because of the above reasons insurance company is not liable to pay the compensation. However, relying on the case of New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC), it held that the appellant is liable to pay the compensation to the claimants-respondents because of statutory liability and it shall be entitled to recover the amount from the owner of the truck. (In fact the Tribunal has also ordered that respondent Nos. 2 and 3, i.e., driver and owner of the vehicle shall be liable to pay the compensation but has directed the appellant to pay compensation and held that it would be entitled to recover the same from respondent No. 3).
(3.) Counsel for the appellant argued that the Tribunal has not considered the question of bona fides of the owner of the vehicle. He has relied on certain observations made by the Supreme Court in the case of New India Assurance Co. Ltd. v. Kamla, 2001 ACJ 843 (SC). It will be proper to reproduce the relevant portion of the judgment. It is as under: "The position can be summed up thus: 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 statu-torily 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 driving licence. The 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 the policy condition. As we have not decided on that contention it 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 a breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In de fault 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.";