IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 119 of 2006. Decided on : 13.11.2009. Khem Chand …Appellant. Versus Smt. Uma Devi and Ors. ….Respondents. _____________________________________________________________ Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting ? Yes For the Appellant : Mr. Neel Kamal Sood, Advocate. For the Respondents : Mr. R.R.Rahi, Advocate for respondents No. 1 to 5. Mr. Deepak Bhasin, Advocate for respondent No.6. _____________________________________________________________ Deepak Gupta, Judge (Oral) In this appeal the short point involved is whether the respondent – Insurance Company can recover the awarded amount from the appellant. 2. The facts, in brief, are that one Tara Chand died in the accident. The claimants filed a petition for grant of compensation which was allowed by the impugned award and compensation of Rs.5,60,000/- with interest at the rate of 7.5% per annum was awarded in favour of the claimants and against the respondent. The learned Tribunal held that the driver of the vehicle was driving the same in an intoxicated condition. It held the Insurance Company liable to pay the compensation at the first instance but the learned Tribunal has further directed that the Insurance Company is at liberty to recover the same from the owner. It is against this portion of the award that the owner has come before ___________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 this Court. 3. It would also be pertinent to mention here that the Insurance Company had filed an appeal being FAO No. 181 of 2006 wherein it had raised a plea that no liability could have been fastened on it. The appeal was dismissed by this Court on October 18, 2006. 4. The law is very well settled that a claim which falls within the purview of an Act policy i.e. a liability falling within the ambit of Section 147 of the Motor Vehicles Act, 1988 ( the Act) can only be contested by the Insurance Company on the grounds available to it under Section 149 of the Act. It is not permitted to contest the proceedings on any other grounds. Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Act. Therefore, the liability, which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It may be clarified that in case the insurer in addition to the liability which it is bound to cover under the Act covers other liability then in case of such extended liability, it may raise the defences available to it as per terms of the policy, but as far as statutory liability is concerned, the insurer has no authority to incorporate any term in the policy which is not contemplated in terms of Section 149 of the Act. Therefore, the Insurance Company could not have been permitted to raise this defence and it could not be permitted to recover the awarded amount from the insured. 5. In this case, I also find that the clause in the policy relied upon by the Insurance Company is not applicable. This clause which provides that the Insurance Company shall not be liable if the person driving the vehicle is intoxicated with the knowledge and consent of the insured is incorporated in Section-I of the policy. This section only deals with own damage claims i.e. damage caused to the vehicle in question. Section-II of the Act deals with third parties and does not contain a similar clause. Therefore, it is apparent that even the policy did not contemplate that the Insurance Company would not be liable in 3 case of third parties in case the driver drove the vehicle in an intoxicated condition, with the knowledge of the owner. 6. In view of the above discussion, the appeal is allowed and the finding of the learned Tribunal that the Insurance Company is entitled to recover the amount from the owner is set-aside. November 13, 2009. ( Deepak Gupta) (GR) Judge.