The Oriental Insurance Company Ltd. vs Smt. Dhapu Jain (Lodha) and Others

I.M. Quddusi, J.—The instant appeal, filed by the appellant Insurance Company, arises from the award dated 12th November, 2009, passed by the 9th Additional Motor Accident Claims Tribunal (FTC), Raipur in Claim Case No. 76/2009. The facts, in brief, are that on 7-4-2007 at about 10.30 a.m. deceased Dilip Kumar Jain was going on his motorcycle, bearing registration No. C.G. 07/G-8781, to Basin from Raipur. On the way, near Abhanpur, the non-applicant No. 1 (Ajay Masih), driving the vehicle, bearing registration No. C.G.-04/G-0940 in a rash and negligent manner dashed the motorcycle from behind, resulting in death of Dilip Kumar Jain.

The legal heirs/dependents of the deceased filed a claim case u/s 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 40,00,000/- under various heads. Learned Tribunal, having regard to the facts and circumstances and the evidence on record, granted a total compensation of Rs. 3,76,000/- along with interest at the rate of 6% per annum from the date of the application, holding the non-applicant No. 1 (driver/owner) as liable to pay the amount of compensation because on the date of accident he has not having a valid and effective driving licence. However, it has been directed by learned Tribunal that at the first instance the amount of compensation shall be paid by the non-applicant No. 2/Insurance Company and then it shall recover from the non-applicant No. 1 (driver/owner).

We have heard learned Counsel appearing for the appellant and perused the record.

The main thrust of the appellant is that when learned Tribunal has held that the Insurance Company is not liable to pay the amount of compensation, the direction to pay first and then recover from the non-applicant No. 1 is not sustainable. To substantiate his submissions learned Counsel for the appellant rely on a decision of Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and Others, .

In the case of Vidhyadhar Mahariwala (supra), the issue was relating to liability of the Insurance Company as the driving licence was not valid on the date of the accident. The High Court in appeal, referring to the earlier decisions of Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, National Insurance Co. Ltd. Vs. Kusum Rai and Others, and Oriental Insurance Co. Ltd. Vs. Shri Nanjappan and Others, had held that merely there was a gap in the renewal of driving licence that cannot be a ground for exoneration, therefore, the Insurance Company was liable to indemnify the award. In these facts situation, Hon''ble Supreme Court, referring to the decision in the case of Ishwar Chandra and Others Vs. The Oriental Insurance Co. Ltd. and Others, , wherein above referred three decisions were considered, and it was held that the Insurance Company would have no liability in the case of this nature, agreeing with the view taken in Ishwar Chandra (supra), allowed the appeal, exonerated the Insurance Company from the liability and directed that it is open to the claimant to recover the amount from the owner (respondent No. 2 therein) of the vehicle. In view of the directions and observations given by the Hon''ble Supreme Court in the aforesaid decision, the appeal is allowed. It is open to the claimant to recover the amount of compensation from the non-applicant No. 1/owner & driver. No order as to costs.