1 fa521/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.521 OF 2010 The New India Assurance Company Ltd., a Subsidiary of the General Insurance Corporation of India and a Company incorporated under the Companies Act having one of its Divisional office at Adalat Road, Aurangabad, Through its Senior Divisional Manager, Shri. Vishwas s/o Bansi Gaikwad, Age: 52 years, Occ: Service at The New India Assurance Co. D.O.No.1 Adalat Road, Aurangabad. ...APPELLANT VERSUS 1. Manchak Deorao Shinde, Age: Major, Occ: Business, R/o. Behind Ice Factory, Barshi Naka, Tq. Beed, District Beed. 2. Babu Santram Tarkase, Age: Major, Occ: Business, R/o. Panchashil Nagar, Tq. Beed, District Beed. ...RESPONDENTS ... Mr. A.B. Kadethankar, Advocate for appellant. Mrs. Asha D. Rakh, Advocate for respondent No.1. None for respondent No.2. ... 2 fa521/2010 CORAM: K.K. TATED, J. DATE : 10TH DECEMBER, 2010 PER COURT : . Heard the learned Counsel for the parties. Though respondent No.2 is duly served, no one appeared on behalf of him. 2. This appeal is preferred by original respondent No. 2 - Insurance Company under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 19-06-2009 passed by the learned Motor Accident Claims Tribunal, Beed in Motor Accident Claims Petition No.14/2006 on the ground that at the time of accident, the driver of the vehicle was not holding license and therefore, they are not responsible for the accident. 3. This Court by order dated 09-03-2010 issued notice to the respondents and made it clear 3 fa521/2010 that the appeal will be decided finally at the stage of admission and called Record and Proceedings. A few facts of the matter are as under : 4. On 19-11-1998 respondent No.1 was going to village Dhekanmoha on bicycle by Telgaon Beed road. At about 9-00 p.m., when he came near Technical College, one motor cycle came from opposite side in high speed and gave dash to the bicycle, due to which, respondent No.1 fell on the ground. He sustained injuries near right hand, nose and mouth. He sustained bleeding injuries. He was admitted as indoor patient from 19-11-1998 to 26-11-1998. Thereafter, respondent No. 1 filed Claim Petition under Section 166 of the Motor Vehicles Act before Motor Accident Claims Petition No.14/2006 claiming compensation of Rs.1,00,000/-. 5. In the said Claim Petition, respondent No.1 owner of the vehicle filed written statement 4 fa521/2010 on 10-07-2006 and opposed the claim petition. In the similar way, the appellant - original respondent No.2 Insurance Company also filed their written statement on 12-04-2006 and opposed the claim petition on the ground that the driver was not having valid and effective driving license at the time of the accident. The Tribunal passed the impugned judgment and award dated 19-06-2009 holding that respondent No.1 - original claimant is entitled to compensation of Rs.68,200/- alongwith interest @9% per annum from the date of filing of the petition i.e. 30-01-2006 till date of payment. 6. The Tribunal directed the appellant Insurance Company to pay said compensation jointly and severally to respondent No.1 original claimant. 7. Being aggrieved by the judgment and award dated 19-06-2009 passed by the Tribunal, the Insurance Company filed present appeal on the 5 fa521/2010 ground that the finding of the Tribunal that policy did not contain any mandate as to holding of valid driving license by the bike rider for effecting the policy is perverse to the record. The policy was produced and relied by the claimant himself which consisted a clear mandate as regards to driving license of the rider. 8. The learned Counsel appearing on behalf of the appellant further submits that if the rider of the insured vehicle did not possess valid and effective driving license at the time of accident, the insurer is not bound to indemnify the insured nor the insurer can be compelled to compensate the claimant even to a third party unlike the findings of the Hon'ble Tribunal. He further submits that once the Tribunal arrives at conclusion that there is breach of basic policy term at the hands of the insured, it has no further jurisdiction to hold the insurer liable first and to compensate the claimant and then to recover the compensation amount from the insured. The learned Counsel 6 fa521/2010 appearing on behalf of the appellant Insurance Company further submits that the Hon'ble Tribunal has exercised the jurisdiction not vested in him by directing the insurer to compensate first to the claimant and then to recover the same from the insurer. The Tribunal while dealing under Section 168 of the Motor Vehicles Act 1988, can not travel beyond the terms and conditions of the insurance contract. 9. In support of his submission, the learned Counsel appearing on behalf of the appellant relied on judgment of the Apex Court in the matter of National Insurance Company Ltd. vs. Swaran Singh reported in A.I.R. 2004 S.C. 1531. In this case, the Apex Court held that if the driver of the vehicle admittedly did not hold any license then the Insurance Company is not liable to pay compensation. Para-79 of that judgment reads as under. 7 fa521/2010 "79. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand at all, e.g. a case where an accident takes place owing to a mechanical fault or vis major. [See Jitendra Kumar (supra)." 10. He further relied on the authority in the matter of Bhuwan Singh vs. M/s. Oriental Insurance Co. Ltd., and another, reported in 2009(2) All M.R. 913. In this case also, the Apex Court held 8 fa521/2010 that if the driver did not hold valid driving license at the time of accident then the Insurance Company is not liable to pay compensation. 11. On these submissions, the learned Counsel appearing on behalf of the appellant Insurance Company submits that the impugned judgment and award passed by the Tribunal against them is liable to be set aside. 12. On the other hand, the learned Counsel appearing on behalf of respondent No. 1 original claimant vehemently opposed the present appeal. She submits that the Insurance Company failed to enter into witness box to prove that at the time of accident, the driver was not holding valid license. She further submits that the observation made by the trial Court in Para-11 about license is not based on any cogent evidence and therefore, same cannot be considered for deciding the same. In support of her submission, she relied on the judgment of the Apex Court in the matter of 9 fa521/2010 Narchinva V. Kamat and another, etc. vs. Alfredo Antonio Deo Martins and others reported in A.I.R. 1985 S.C. 1281. 13. I have gone through the record and proceedings of the present matter. The point arising in this case for determination is, whether the Insurance Company is liable to make payment of compensation to the claimant, if the driver of offending vehicle did not hold valid license at the time of the accident. 14. In the present case, the trial Court in Para-11 of the judgment, categorically held that respondent No.2 owner participated in the proceedings, failed to bring any evidence on record to show that the driver was holding valid license at the time of accident because respondent No.1 original claimant at the time of filing claim petition made party to the owner and Insurance Company only and not the driver of the vehicle. In para-11, the Tribunal categorically held that at 10 fa521/2010 the time of accident, the driver was not holding valid license and in spite of that, held that the appellant Insurance Company to pay compensation to respondent No.1 original claimant and recover the same from respondent No.2 owner of the vehicle. In the matter of Swaran Singh (supra), the Apex Court categorically held that if the driver is not holding valid license at the time of accident, the Court cannot direct the Insurance Company to pay compensation. Similar view is taken by the Apex Court in the matter of Bhuwan Singh (supra). Though the learned Counsel appearing on behalf of respondent No.1 original claimant relied on Para-43 and 64 of the judgment of the Apex Court in the matter of Swaran Singh (supra), it cannot be held that the Insurance Company is liable to make payment of compensation to original claimant. In para-105 of that judgment, the Apex Court has discussed about the grounds available to the insurance Company to challenge the judgment and award passed by the Tribunal in terms of Section 149(2)(a) or (b) of the Motor Vehicles Act and in 11 fa521/2010 Para-64 the Apex Court discussed requirements to establish the breach of terms and conditions of the insurance policy. 15. In the present case, respondent No.2 owner of the vehicle participated in the proceeding. The Tribunal categorically held in Para-11 that the driver of the vehicle was not holding valid driving license at the time of accident. 16. In view of the above mentioned facts and circumstances, I do not find any reason why the Insurance Company to be held responsible for making payment to respondent No.1 original claimant. Therefore, the First Appeal is allowed. The judgment and award passed by the Tribunal dated 19-06-2009 is modified to the extent that the Insurance Company is not responsible for payment of compensation. It is made clear that respondent No.1 original claimant can proceed to recover the said amount from respondent No.2 owner 12 fa521/2010 of the vehicle. No order as to costs. 17. If any amount is deposited by the appellant Insurance Company in this Court, they are entitled to withdraw with accrued interest. sd/- [K.K. TATED, J.] sut/DEC10/fa521.10