FAO No. 3808 of 2009(O&M) and 1 FAO No. 3809 of 2009 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 3808 of 2009(O&M) Date of decision September 6, 2010 The New India Assurance Company Ltd. ....... Appellant Versus Gurcharan Kaur and others ........ Respondents FAO No. 3809 of 2009(O&M) The New India Assurance Company Ltd. ....... Appellant Versus Kulwinder Kaur and others ........ Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Vandana Malhotra, Advocate for the appellant. Mr. HNS Gill, Advocate and Ms. Simranjeet Kaur, Advocate for respondent Nos. 4 and 5. **** K. Kannan, J (oral). 1. Both the appeals involve common issues and are disposed of by a common order. 2. The appeals are at the instance of the Insurance Company where on proof of the fact that the driving license was not valid, the Tribunal directed the Insurance Company to satisfy the claimants and provided for a right of recovery against the owner. The insurer is still not satisfied with the award hence in appeal. Learned counsel relies on a judgment of National Insurance Company Ltd. Vs. Kaushalaya Devi 2008 (8) SCC 246 to contend that the Insurance Company is not liable at all. The said case has no application, for the case dealt with a situation of a claim by the representative of a gratuitous passenger. The issue was whether such a passenger will be entitled to any insurance cover when it was an act policy and the Supreme Court held FAO No. 3808 of 2009(O&M) and 2 FAO No. 3809 of 2009 that there was no insurance cover for the death resulting from such an accident. It was a case where no clause in the policy of the insurer to cover the risk and therefore the Court did not allow for a right of recovery. A right of recovery for want of driving license will always be available so long as the insurer is otherwise liable to satisfy the claim but for the provisions of Section 149 (2). The provision for liability to third party and also giving a right of recovery to the insurer against the insured for breach of terms of the policy under situtations covered under Section 149 (2) has been firmly established by several decisions of the Hon'ble Supreme Court and it cannot be reopened again. Particular reference may be made to New India Assurance Co., Shimla v. Kamla,(2001) 4 SCC 342 and National Insurance Co v Swaran Singh (2004) 3 SCC 297 . In the latter case, in paragraph 110 sub paras (iv) to (vi) specifically deal with the situation of a breach by the insured and the subsisting liability of the insurer to satisfy the claim. The award of the Tribunal in so far as it makes the insurer liable to the claimants and provide for a right of recovery is, therefore, perfectly in conformity with law laid down by the Hon'ble Supreme Court and the appeals are without merit and are dismissed accordingly. (K. KANNAN) JUDGE September 6, 2010 archana