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Judgment
N. Ananda, J.—MFA 2877/2010 is filed by claimants for enhancement of compensation.
MFA 3002/2010 is filed by the insurance company to absolve the insurance company of its liability to pay compensation on the ground that driver of insured vehicle was not possessing valid and effective driving license; he was holding a driving license to drive light motor vehicle; the insured vehicle is a light transport vehicle (passenger carrying vehicle). The tribunal should have held that driver of insured vehicle did not possess valid and effective driving license.
The learned counsel for claimants would justify the impugned award. The learned counsel for claimants would submit that compensation awarded by the tribunal is inadequate.
The learned counsel for insured is absent.
It is not in dispute that vehicle involved in the accident is a Maxi Cab (commercial passenger vehicle). The insurance company has produced the Driving License extract of driver namely Santhosh to show that he had driving license to drive light motor vehicle (non-transport).
In a decision reported in Oriental Insurance Co. Ltd. Vs. Angad Kol and Others, the Supreme Court has held: though there is distinction between "light motor vehicle" and "transport vehicle" the transport vehicle may be light transport vehicle, but, for the purpose of driving the same, a distinct license is required to be obtained.
In the circumstances, the finding of tribunal that driver of insured vehicle who had driving licence to drive "light motor vehicle" could also drive "transport vehicle" cannot be sustained.
In a decision reported in 2012 (4) AIR Kar R 305 (in the case of Oriental Insurance Company Limited vs. K.C. Subramanyam and Another) (MFA 2596/2007 dated 12.07.2012) a Division Bench of this court has held: if there is breach of conditions stipulated u/s 149(2) of the Motor Vehicles Act, insurance company cannot be directed to pay compensation to claimants and recover the same from insured.
In the aforestated judgment, it is held: when the insurer has established its defence as provided u/s 149(2) to avoid it''s liability to indemnify the insured, the insurance company cannot be directed to pay compensation and recover the same from insured. In the circumstances, the tribunal has erroneously held that driver of insured vehicle was possessing valid and effective driving license, therefore, insurance company is liable to pay compensation. The finding of tribunal cannot be sustained. In view of this finding, the insured did not have occasion to challenge the award regarding quantum of compensation. Therefore, the matter requires reconsideration by the tribunal.
In the result, I pass the following:
ORDER
MFA 3002/2010 filed by the insurance company is accepted. The insurance company is absolved of its liability. In view of this, MFA 2877/2010 filed by claimants for enhancement of compensation does not survive for consideration for the present. The finding of the tribunal regarding quantum of compensation is not disturbed.
The matter is remanded to the tribunal for reconsideration in the light of observations made herein and in accordance with law. After a fresh award is passed, parties are at liberty to challenge the same as they deem fit. The amount deposited by the insurance company shall be refunded to it.
Office is directed to send back the records along with a copy of this judgment.