IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO Nos. 28, 44 and 46 of 2007 Date of decision June 23, 2008. __________________________________________________________ 1. FAO 28 of 2007 Oriental Insurance Company Ltd. ….Appellant Versus Ram Chander & Ors. ….Respondents 2. FAO 44 of 2007 The Oriental Insurance Co. Ltd. ….Appellant Versus Smt. Meena Kumari & Ors. …..Respondents 3. FAO 46 of 2007 Oriental Insurance Co. Ltd. ……Appellant Versus Master Manoj & Ors. ……Respondent Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 FAO No. 44 of 2007 For the Appellant : Shri Lalit Kumar Sharma, Advocate. For the Respondent No.1: Shri V.S. Chauhan, Advocate For the Respondent No.2: Shri V.D. Khidtta, Advocate FAO No. 46 of 2007 For the Appellant : Shri Lalit Kumar Sharma, Advocate. For the Respondent No.1: Shri V.S. Chauhan, Advocate For the Respondent No.2: Shri V.D. Khidtta, Advocate 1 Whether reports of Local Papers may be allowed to see the judgment? 2 FAO No. 28 of 2007 For the Appellant : Shri Lalit Kumar Sharma, Advocate. For the Respondent No.1: Shri V.S. Chauhan, Advocate For the Respondent No.2: Shri V.D. Khidtta, Advocate __________________________________________________________ Dev Darshan Sud, J. (Oral) In these appeals judgment had been reserved. My attention was invited by the counsel for the appellants to the decision of the Supreme Court in National Insurance Company Ltd. Vs. Kamal Kusum Rai (2006, ACJ (2) Supreme Court 1336) and others wherein the same controversy on the point of law was involved as has been urged in this appeal. The Insurance Company has challenged the award on the basis that driver of the vehicle was not licensed to drive the commercial motor vehicle. In FAO No. 44 of 2007 and FAO No. 46 of 2007, the vehicle involved in the accident was Tempo Trax. It is undisputed before me that according to the Insurance Policy Ext.RW2/A, this vehicle was insured as passenger carrying commercial vehicle with seating capacity of eleven and not exceeding 18. The license of the driver Ext.RW1/A shows that he has been licensed to drive light motor vehicle (LMV). In FAO 46 of 2007, the insurance policy is Ext.RW1/B and Ext.RW1/A is the driving license which has been issued in favour of the driver. In FAO 28 of 2007 the driver Swaran Singh has been licensed to drive scooter, motor cycle, car and jeep only. The vehicle has been insured as passenger carrying vehicle with seating capacity of four plus one persons. These facts are not disputed and are established on record. The only point urged by learned counsel appearing for the appellant is that in terms of the judgment in 3 National Insurance Company Ltd. Vs. Kamal Kusum Rai (2006, ACJ (2) Supreme Court 1336) there being no endorsement on the license in terms of Section 3 of the Motor Vehicles Act, 1988, hereinafter referred to as the Act, to the effect that driver is licensed to drive a commercial vehicle and such driving license cannot be held effective and valid driving license under the Act for the use of the light motor vehicle used for commercial purpose. The owner of the vehicle cannot be absolved from his liability. I have heard learned counsel for parties. The judgment in National Insurance Company Ltd. Vs. Kamal Kusum Rai (2006, ACJ (2) Supreme Court 1336) squarely covers the facts of the present case. While disposing all these appeals, the Supreme Court had directed that the amount will not be recovered from the claimants. However, these directions are passed by the Court in view of the provisions laid down in Article 142 of the Constitution of India which enables the Court to pass such directions. Keeping in view the facts of the present case, it is held that the Insurance Company is not liable for the payment of the awarded amount. However, the amount will not be recovered from the claimants and it will be open to the Insurance Company to make claim for recovery from the respective owners of the vehicle(s). These appeals are accordingly disposed of. There shall be no order as to costs. Learned counsel appearing for the respondent has placed reliance on the judgment of the Supreme Court in National Insurance Company Ltd. Vs. Annappa Irappa Nesaria Alias Nesar Agi and others (2008) 3 Supreme Court Cases 464. He submits that although the license has been issued on 1.5.2001, but there is nothing on record to show when he had actually applied for the same and therefore he is . entitled to “benefit of doubt”. This submission cannot be accepted. It was for the 4 driver to have said in his evidence or the owner to have proved on record on which date the application for license was made. In any event, I do not find any force in the contention of the learned counsel appearing for the respondents. Accordingly, the appeals are allowed in the aforesaid terms. No costs. June 23, 2008 (Dev Darshan Sud), (ms) Judge