IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.147 of 2008 THE ORIENTAL INSURANCE COMPANY LTD. BRANCH SITAMARHI. …………… OPPOSITE PARTY NO. 2 ………… APPELLANT Versus 1. MOSTT. NIRMALA DEVI WIFE OF LATE LALLAN RAI 2. SURAJ RAI (MINOR) 3. CHANDAN RAI (MINOR) 4. RAJAN RAI ALL SONS OF LATE LALLAN RAI RESPONDENT NO. 2 AND 3 ARE UNDER GUARDIANSHIP OF MOSTT. NIRMALA DEVI, WIFE OF LATE LALLAN RAI. 5. SMT. RAMJOT DEVI, WIFE OF MAHESH RAI ALL RESIDENT OF VILLAGE-SARWARA, P.S.-BAJPATTI,DISTRICT-SITAMARHI. …………… APPLICANTS ………… CLAIMANTS ……………RESPONDENTS 6. ANJALI JAISWAL, WIFE OF SRI NAGENDRA CHOUDHARY, RESIDENT OF VILLAGE & P.O.-JANAKPUR ROAD, DISTRICT- SITAMARHI (OWNER OF THE VEHICLE) ………………… OPPOSITE PARTY NO. 1 ………… RESPONDENT ----------- 6. 6.5.2009 Heard counsel for the appellant as also counsel for respondent no.6. Despite service of notice and appearance through counsel, the claimants respondents no. 1 to 5 have not appeared. This appeal at the instance of the Insurance Company is confined to the extent of disowning the liability of the amount of compensation awarded by the Tribunal on the ground that the driver of the vehicle had no valid licence on the date of accident i.e. 21.2.1997. Counsel for the appellant, therefore, submits that the approach of the Tribunal in paragraph no. 20 of the impugned judgment in holding the appellant Insurance 2 Company liable to pay the amount of compensation and with a liberty to recover it subsequently from the owner of the vehicle, in case it is proved that the driver had no valid licence, is patently illegal. Counsel for the appellant in this regard had drawn attention to the findings arrived in paragraphs no. 13, 17 and 18 in the impugned judgment of the Tribunal to contend that if the owner had produced a forged licence of the driver issued from Himachal Pradesh, that by itself was sufficient for the Tribunal to hold the owner and not the Insurance Company was liable for payment of compensation. He, however had, immediately corrected his stand by taking a plea that though there was also another licence produced by the owner which was issued from the transport office in the State of Bihar but then his submission as against the aforementioned second licence of Bihar is that the same was not valid on the date of accident. In this context he submits that a duplicate licence was issued on 31.7.1997 and its validity period was upto 3 30.7.2000 whereas the accident had taken place on 21.2.1997 and therefore, it would be a case of no licence and hence the liability to pay the amount of compensation would be on the owner and not the Insurance Company. Counsel appearing on behalf of Respondent no. 6, the owner would however immediately point out that it is not the case of the owner that the driver had no licence from Bihar prior to 31.7.1997, rather it has come on record that he had a valid licence issued from the District Transport office, Muzaffarpur for the period 5.1.1994 to 4.1.1997 and only thereafter the duplicate was issued for a period of 31.7.1997 to 30.7.2000. In such a situation this Court would not find any infirmity in the findings and conclusion recorded in paragraph no.20, especially when the Tribunal has come to a specific finding in paragraph no.17 that Rama Pratap Rai or Rama Pratap Das was the same person and as such, the defence of the appellant Insurance Company of Bihar licence being not in the name of the driver had been 4 over ruled. This Court is also in agreement with the contention of the counsel for the owner of the vehicle that if the owner had a firm belief on the driver having obtained a valid licence, it could not be said to be a case of malafide or non-contravention of breach of condition of the policy. The Tribunal, infact, having recorded all these findings with regard to an existing valid licence from 1994 onwards in the name of the driver has left the matter open for the appellant Insurance Company by recording the following findings: “Hence, in consideration of the above facts I am of the view that the insurer of the vehicle, O.P. Oriental Insurance Company is liable to pay the compensation. However, if at any time contrary is proved or it is found that the owner has committed any breach of the condition of the policy and he deliberately made over the vehicle to such a driver who was not possessed of valid driving licence, the Insurance Company may sue the owner to recover the amount. But, for the present in view of the discussion made above I come to the conclusion and hold that the Oriental Insurance Company is liable to pay the compensation to the claimants.” The appellant Insurance Company having been thus given liberty and in fact 5 not required to institute a separate suit will, therefore, always have the option to find out the details of Bihar licence and in case it is proved by the appellant Insurance Company that the vehicle owner knowingly and deliberately had engaged a driver who had no valid licence on the date of accident it can definitely take recourse of recovery of amount and atleast on that score this Court would not find any error in such approach of the Tribunal in the impugned judgment. No other point has been argued by the counsel for the Insurance Company and therefore, this appeal is disposed of with a clarification that the appellant Insurance Company in the event of satisfying the requirement in paragraph 20 of the impugned judgment would be at liberty to claim the amount of compensation from the owner respondent no.6. After the aforesaid order has been dictated, counsel for the appellant Insurance Company assures this Court that the amount as directed in the impugned judgment shall be paid to the claimants within a period of two months from the date 6 of receipt/ production of a copy of this order without waiting for initiating or getting an order for recovery of the amount from the owner. It is thus observed that in case the said amount of compensation is not paid by the appellant Insurance Company to the claimant Respondent no. 1 to 5 within a period of two months from the date of receipt/ production of a copy of this order the Insurance Company will also become liable to pay additional penal interest at the rate of 2% per annum on the entire amount of compensation from the date of filing of claim which would be in addition to the interest which has been granted by the Tribunal in the impugned judgment. With the aforesaid observation and clarification this appeal is finally disposed of. (Mihir Kumar Jha,J.) Surendra/