Oriental Insurance Co. Ltd. vs Ranjit Saikia and Others

Doraiswamy Raju J.-Leave granted.

While ordering notice in the special leave petitions on 29-11-2001 it has been indicated as under:

"Notice will be issued only to Respondents 2 and 3, the owner and the driver of the vehicles concerned respectively. The notice will be limited to the question whether the Insurance Company can be allowed to recover the awarded sum from the owner-insured."

It is seen from the office report dated 24-4-2002 that notices on Respondents 2 and 3 were issued and the respondents were served as per the direction of this Court. Despite the service of notice the respondents have chosen not to enter appearance and contest the proceedings on the proposed course of action.

After hearing the learned counsel for the appellant and on perusal of the orders of the Claims Tribunal as well as the one passed by the High Court on appeal, we are of the view that if the Insurance Company could substantiate its claim that the driver of the vehicle in question did not have the valid licence and the driving licence was a faked one it is open to the appellant Insurance Company, which has otherwise paid the amount to the claimants in excess of its liability or in absence of any liability whatsoever on its part, in terms of the declaration of law made by this Court in New India Assurance Co. v. Kamla1 to proceed for recovery against the owner and the driver. On the facts and circumstances of the case we find that the High Court has also given such liberty to the appellant Insurance Company to proceed against the owner while at the same time observing that it is not open to the Insurance Company to challenge the quantum of compensation ordered. The claim of the appellant that such permission should be granted for recovery in these very proceedings could not be countenanced in the absence of any effort to positively prove the claim of the Insurance Company in these proceedings itself that the driver had no valid licence. In view of what has been stated and in view of the position of law as it stands, the appellant Insurance Company shall be at liberty to proceed in accordance with law against the owner and the driver to recover the amount paid to the third-party claimants by substantiating its claim about the disqualification of the driver to drive the vehicle in question. With this liberty granted to the appellant, the appeals shall stand finally disposed of.