PRAKASH TATIA,J. - (1.) HEARD the learned Counsel for the appellant and respondents -claimants finally as a short law point is involved in this appeal.
(2.) THE brief facts of the case are that a claim petition was filed by claimants due to the death of Buddharam in accident. The Tribunal while deciding issue No. 3 held that the appellant insurance company is not liable for the payment because of the fact that conditions of policy of the insurance was violated by the non -applicant No. 2, Mangla Ram, who was the holder of the policy, but at the same time, the Tribunal directed that the insurance company shall make the payment of the amount of the award and the appellant insurance company shall be entitled to recover this amount from the non -applicant No. 2, Mangla Ram. According to the learned Counsel for appellant, when the Tribunal held that insurance company is not liable for the payment and as there is a clear violation of the terms of the policy then the Tribunal has committed a serious illegality in directing the appellant company to make payment of the award amount to the claimants. The other part of the award is not under challenge. According to learned Counsel for the appellant, the Hon'ble Supreme Court in several cases held that when a vehicle is handed over to a person, who is not having a valid licence and accident is caused due to rash and negligent driving by the above person then this is a breach of condition of policy and insurance company is not liable, for which learned Counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Kashiram Yadav v. Oriental Fire and Genl. Ins. Co. Ltd. 1989 ACJ 1078 (SC), another judgment in Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC) and one more judgment of the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC). In all these above three cases the Hon'ble Supreme Court held that when the driver was not holding a valid driving licence and owner has given the vehicle knowingly to the person who was not having a valid driving licence then this amounts to breach of condition of policy by the holder of the policy and, therefore, the insurance company is not liable for the payment of the award amount. Therefore, according to learned Counsel for the appellant in view of the above judgments of the Hon'ble Apex Court, the appellant company is not liable for the above amount and there is no provision of law in the Motor Vehicles Act, which authorises the Tribunal to direct insurance company to make the payment despite the fact that the insurance company is not liable to make the payment either under contract or by statutory provision. According to the learned Counsel for the appellant the liability can be fastened upon the insurance company only when it is recoverable in accordance with law from the appellant company and not otherwise.
(3.) LEARNED Counsel for the respondents submitted that the respondents -claimants are third party and lawful beneficiaries of the contract between the appellant insurance company and the owner of the vehicle. The respondent is not concerned with the minute inter se conditions of the insurance company. The respondents -claimants are having valuable right to enforce award against the insurance company, also as the Motor Vehicles Act provides the provision for recovery of the amount from the insurance company under the circumstances given in the Motor Vehicles Act. Therefore, if the Tribunal has passed the award in favour of claimants wherein the Tribunal directed appellant to make payment of the award amount to the claimants with liberty to the appellant to recover the amount from the owner of the vehicle then the Tribunal has not committed any illegality because here in this case there is an admitted case of contract between the insurance company and the owner of the vehicle. The breach, if there was any, was committed by the owner of the vehicle and for which the insurance company can recover the amount paid to the claimants but cannot deny the benefit to the claimants. Learned Counsel for the respondents relied upon the recent judgment of the Hon'ble Supreme Court in the case of New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC), wherein the Hon'ble Supreme Court directed the appellant insurance company to pay award amount to the claimants and also directed the Tribunal to decide the next question whether the insurance company is entitled to recover that amount from the owner of the vehicle on account of vehicle being driven by a person who did not have a valid licence to drive the vehicle.;