{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.269/1997 (SUKHDEV SINGH VS. SMT. KIRAN KANWAR & ORS.) Date of order : 15.3.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. R. Chouhan, for the appellant. Mr. Anil Bhandari, for the owner-respondent. Mr. Sanjeev Johari, for the Insurance Company. Mr. N.L. Joshi, for the claimant. 1. This is a misc. appeal filed by driver of offending vehicle (NA-1) under Section 173 of Motor Vehicles Act (for short called “the Act” against an award dt. 5.2.97 passed by MACT, Sriganganagar in Claim Case No.16/87. 2. By impugned award, the Tribunal partly allowed the claim petition of claimants (Respondent Nos. 1 to 3) filed under Section 166 of the Act and awarded a total sum of Rs.2,65,000/- to claimants by way of compensation for the death of one “Karni Singh” who died in vehicular accident on 25.5.86. However, while passing the award, the Tribunal exonerated the Insurance Company i.e. Insurer of offending vehicle from the liability arising out of accident. { 2 } 3. So the short question that arises for consideration in this appeal filed by driver of offending vehicle is whether Tribunal was justified in exonerating the Insurance Company (Insurer of offending vehicle) from the liability arising out of the accident in question thereby confining the same only against Insured – i.e. owner of offending vehicle and its driver? 4. Having heard the learned counsel for the parties and on perusal of the record of the case, I am of the view that Tribunal was right on facts in exonerating the Insurance Company and in consequence was justified in dismissing the claim petition as against the Insurer. As a result, this appeal is liable to be dismissed by upholding the impugned award in so far it relates to Insurance Company (appellant) is concerned. 5. Since the issue involved in this case can only relates to the liability of Insurer and hence it is not necessary to take note of the facts in detail except to the extent necessary to decide the issue involved in this appeal. 6. It is a death case. On 25.5.86, one Karni Singh met with a vehicular accident and died, giving rise to filing of claim petition by the claimants who are his legal representatives seeking compensation for his death. It was filed against the Insurer (appellant), insured and driver of { 3 } offending vehicle. 7. The Tribunal however exonerated the Insurance Company from the liability arising out of accident because it was found that driver of offending vehicle (appellant herein) was holding a license (Ex.P/1) to drive Scooter on the date of accident – 25.6.86 whereas he was found driving a Jeep i.e. offending vehicle. It was, therefore, held that it is a case of clear breach of policy condition committed by Insured (owner of offending vehicle) and hence no liability can be fastened on the Insurer of vehicle because of breach having been committed by the Insured of the policy. In this view of the matter, the liability was confined and fastened only on Insured i.e. owner and Driver of the offending vehicle. 7. This issue in somewhat similar facts came up for consideration before Supreme Court in the case reported in 2008 AIR (SCW) 3258 (Oriental Insurance Company vs. Zaharulnisha). Their Lordships after examining the provisions of the Act and appreciating them in the light of to the fact of the case held as under: “In the light of the above- settled proposition of law, the appellant-insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death { 4 } of Shukurullah in road accident which had occurred due too rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.” 8. In the case at hand also, admittedly on the date of accident, the driver of offending vehicle (appellant) was holding license to drive Scoooter whereas he was driving a “Jeep” which caused accident in question. It was thus a clear case of breach of policy condition and hence Tribunal was justified in accepting the plea of Insurance Company for exonerating them of the liability arising out of the accident. In my view, the facts of this case and that of the one involved in the case of Zaharulnisha (supra) are similar and hence, law laid down in Zaharulnisha would apply to the facts of this case on all force. 9. Learned counsel for the appellant, however, contended that since the license was granted to driver for driving a Jeep on 3.9.86 as is clear from the endorsement on license (Ex.D-1) and hence should be held that he was holding the license to drive the Jeep on the date of { 5 } accident. I am unable to accept this submission for more than one reason. Firstly, the date of accident in this case is 25.6.86, whereas the endorsement on the license to drive the vehicle is 3.9.86 i.e. subsequent to date of accident. Secondly, when admittedly on the date of accident, the license was that of driving “Scooter” and hence any endorsement made subsequent to the date of accident would be no consequence. It is always prospective and not retrospective. 10. Learned counsel for the appellant then contended that driver was holding or presumed to be holding learners' license prior to grant of permanent one and hence it be held that he was holding learners' license on the date of accident. I do not agree to this submission also. Admittedly, the appellant failed to file any learners' license. Section 8 of the Act contemplates issuance of learners' license under Section 8 of the Act in Form -3. If the appellant was possessing the learners' license, then he ought to have filed it in support of his case. He did not do so. In the light of this, it can not be held in his favour that he was holding learners' license to drive Jeep on the date of accident. There can be no presumption in such case for holding that he was holding learners license. It has to be filed as a document in evidence. It was not done. 11. Learned counsel for owner (respondent) argued several issues in his support. Suffice it to say, they { 6 } can not be entertained in this appeal filed by driver because firstly, his cross-objection was rejected by this Court. Secondly, he did not choose to file any cross- appeal and lastly he can only support the appellant (driver) and nothing else. Since, I have rejected the submission of appellant and hence the appeal has to be dismissed. 12. Learned counsel for the respondents (claimant), however, submitted that since respondent No.3 (mother) has died pending appeal and hence entire awarded sum be now directed to be paid to respondent No.1, who is the woodow of the deceased. I am inclined to accept this submission because once father and mother who are one of the claimant have died, then the only claimant in this case to receive the compensation is widow (Respondent No.1) off deceased. The Tribunal should pay/release the entire awarded sum in favour of Respondent No.1 i.e. widow of deceased in case so far it is not paid. 13. Accordingly and in view of foregoing discussion, the appeal is found to be devoid of any merit. It is hereby dismissed. No cost. (A.M.SAPRE ),J. /Anil/