K. Kannan, J. - (1.) BOTH the appeals are connected arising out of same accident. The appeal in FAO No. 512 of 2000 is at the instance of the insurance company challenging the liability and the appeal in FAO No. 251 of 2000 is at the instance of the claimants for enhancement of compensation.
(2.) THE appeal by the insurance company is on issue of liability to state that in the petition filed though the insured had been cited as respondent 1 -A, the petition was dismissed against respondent No. 1 -A on the failure of the claimants to take publication as substituted service when the owner was not served. The insurance company was, however, served and the Tribunal proceeded to examine the case and assessed the compensation making the insurance company liable. The insurance company has two contentions to take. One, the driver had a licence issued to him on 19.03.1991 which was valid till 18.03.1994 and after the accident had taken place on 01.01.1995, he had applied for renewal of licence belatedly on 11.01.1995 and secured it to be effective till 11.01.1998. On the date when the accident took place, he did not have a valid effective driving licence to secure to the owner a right of indemnity. Two, the liability of the insurer is always secondary in the sense that it could be called upon to indemnify the insured only if the insured was made liable in the first place. If the claimants have allowed the petition to be dismissed against the insured, there was no cause of action to proceed against the insurance company and make it liable. As regards the first contention that the driver did not have a valid driving licence, I find that it is the matter of record and admission that the driver's licence had been renewed only subsequent to the accident. The Tribunal still made the insurer liable and found the licence to be adequate by an endorsement in the letter given by the driver to the DTO for certification regarding his licence where the authority had stated that licence was valid till 11.01.1998. The vagueness of the endorsement is that it did not signify any where when the renewal was sought and when it was effective from. When the copy of the driving licence itself produced before the Court that the original issue had expired on 18.03.1994 and that it was renewed only subsequent to the accident, the Tribunal ought to have found that the driver did not have a valid driving licence. Even apart from the appraisal of the document, there was an evidence of the driver that his licence was effective only from 11.01.1995. The liability of the insurance company could have been, therefore, examined only in the context of violation of terms of policy and provision for recovery against the owner and driver.
(3.) THE above issue would require to be still seen in the context of defence taken by the insurer that the owner had not been served and when the petition was dismissed against the owner, the insurer alone could not be made liable. The principle that the liability of the insurance company could arise only if the owner is liable is rested on the principle of indemnity that the owner's liability shall be ensured before the insurance company could be made liable. The liability is not in any way secondary for under Indian law the liability of an insurer is joint and several. If there was a situation that could exonerate the owner, such as, when the vehicle was not involved or the claimant himself was guilty of negligence or there were any other circumstances for exoneration of the owner, the insurer alone to be selectively made liable would not be possible. But in a case where the insurance particulars are admitted and the involvement of the vehicle is also an admitted fact, then with or without owner, it must be seen that the claimants were entitled to the compensation and the claim cannot be allowed to be defeated against the insurer by the only reason that the Tribunal allowed the case to be dismissed against the owner for an act of indiscretion of a party who could not have known the consequence of non -impleadment. The lapse does not go into the root of the problem namely of tracking the liability of the owner in a case where involvement of his vehicle was admitted and the policy had indeed been issued by the insurance company for insurance. I will not allow this technical objection to prevail to deny to the claimant the entitlement that has been assessed against the insurer.;