[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL MISC. APPEAL NO. 134/1997 THE ORIENTAL INSURANCE COMPANY LTD. Vs. AJIJ SHAH & ORS. Date: 26/03/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Man Singh for Mr. Virendra Agarwal for the appellant. None present for the respondents. **** The present civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 is preferred by the appellant the Oriental Insurance Company Ltd. against the impugned Award dated 10.05.1996 passed by the Motor Accident Claims Tribunal, Malpura, District Tonk (for short 'the Tribunal') in Claim Case No. 72/94 (55/92), whereby an award to the tune of Rs. 53,000/- has been passed in favour of the claimant/respondent. Brief facts of the case are that on 07.02.1992 at about 11 a.m., a tractor bearing No. RJX-9091 belonging to Chhitar Mali was being driven Shri Kana Nai, who was minor. Kana put the tractor in back gear without giving horn or indication and crushed Jafar Shah who was behind the tractor, as a result of which Jafar Shah died in the hospital. First Information Report No. 150/92 was lodged at [2] Police Station Diggi by Mehboob Khan. After investigation the police filed charge-sheet against Kana son of Jagdish and Chhitar son of Raghunath under Section 270, 304 IPC and Section 3/181, 5/180, 134/187 of the Motor Vehicles Act, 1988. The claimant-respondent filed a claim petition before the Motor Accident Claims Tribunal, Tonk on 23.03.1992 claiming Rs. 13,08,000/- as compensation against the appellant and respondent Nos. 2, 3 and 4 for the alleged loss suffered by him on account of the death of his son Jafar Shah, aged 4 years due to the accident. The Tribunal vide its impugned Award dated 10.05.1996 awarded compensation to the tune of Rs. 53,000/- in favour of the claimant/respondent along with interest @ 12% p.a. from 23.03.92. The impugned Award is challenged by the appellant Insurance Company on the ground that the Tribunal has seriously erred in deciding issue Nos. 3 and 4 against the appellant Insurance Company merely on the basis that in the charge-sheet the age of Kanaram has been mentioned as 18 years. It was also not considered that Kanaram was not possessing valid licence to driver the vehicle at the time of the accident. Further as per Section 149(2)(a)(ii), no sum shall be payable by the insurer in respect of any award if there has been a breach of a specified [3] condition of the policy being a condition excluding driving by a person who is not dully licenced or has been disqualified for obtaining the licence. It is further contended that the name of respondent No.4 Mst. Barji was dropped from the array of the record at the request of the counsel for the claimant since the claimant did not press any relief against her. The Insurance Company is under the obligation to indemnify the insured, if he is found liable for compensation but since the insured has been dropped, there was no occasion for the Tribunal to determine the liability of the insured and thus, the Insurance Company cannot be held liable. I have heard learned counsel for the appellant and carefully gone through the record of the case, relevant provisions of law as also the impugned Award dated 10.05.1996 passed by the Tribunal. I have considered the contention raised on behalf of the appellant that Kana, the driver of the tractor in question was minor, but in the charge-sheet the age of Kana has been mentioned as 18 years and the Insurance Company is not able to prove that Kana was minor and below 18 years at the time of alleged accident. Further considering the impugned Award and the age of the deceased, the Tribunal has granted [4] Rs. 53,000/- as compensation, which cannot said to be excessive and unreasonable, out of which Rs. 25,000/- has already been paid to the claimant/respondent against no fault liability. I have also considered the submission made on behalf of the appellant that the driver was not having valid license and the appellant is not liable to make the payment of the compensation as awarded by the Tribunal as the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Gian Chand And Others, 1998(1) T.A.C. 36 (S.C.), has held that “under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver.” I have gone through the judgment rendered by the Hon'ble Supreme Court in the case of United India Insurance Co. Ltd. Vs. Gian Chand And Others (supra). I have also gone through the judgment of Hon'ble Supreme Court rendered in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan & Ors., reported in AIR 2007 SC 1971, wherein the Hon'ble Supreme Court has held that the award may be satisfied by the appellant but it would be entitled [5] to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. It has been further observed that it is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue directions for doing complete justice to the parties. Hon'ble the Supreme Court has further observed that in National Insurance Company Ltd. V. Kusum Rai & Others, (2006) 4 SCC 250, this Court observed that “Thus, although we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan.” Having heard learned counsel for the appellant, upon careful perusal of the impugned Award dated 10.05.1996 passed by the Motor Accident [6] Claims Tribunal, Malpura, District Tonk and looking to the peculiar facts and circumstances of the case and in view of the ratio decided by the Hon'ble Supreme Court, the appellant Insurance Company is directed to make the payment of compensation as awarded by the Tribunal, but the Insurance Company would be entitled to realize the same from the owner of the tractor as observed by the Hon'ble Supreme Court, but in any case, the compensation awarded by the Tribunal in favour of the claimant/respondent to the tune of Rs. 53,000/- cannot said to be excessive, unjust and unreasonable and the same requires no interference by this Court. With these observations, the civil misc. appeal stands disposed of. Record be sent back. (K.S. RATHORE)J. /KKC/