1 fa.743.11.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.743 OF 2011
Appellant : The Oriental Insurance Company Ltd.,
Through its Branch Office at Buldhana,
At Khamgaon, Dist. Buldhana,
Represented by Manager,
Oriental Insurance Company,
T.P. Hub, Nagpur.
ig -- Versus --
Respondents : 1] Afrenebee Latifshah Phakir
Aged 11 Yrs., Occupation - Education,
through her guardian
Latifshah Hanifshah Phakir,
R/o. Datala, Tq. Malkapur, Dist. Buldhana.
2] Mohm. Arif Sk. Lal,
Age - Major, Occupation - Business,
R/o Borkhedi, Tq. Motala, Dist. Buldhana.
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Mrs. Mrunal Naik, Advocate for the appellant.
Shri K.S. Narwade, Advocate for respondent No.1.
Shri C. A. Joshi, Advocate for respondent No.2.
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CORAM : R.K. DESHPANDE, J.
DATE : MARCH 18, 2016
ORAL JUDGMENT :-
01] In M.A.C.P. No.161/2006 filed under Section 166 of the
Motor Vehicles Act, the Tribunal has awarded compensation of Rs.85,275/- in a permanent disability claim holding the owner of the ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:27:32 ::: 2 fa.743.11.jud vehicle and the insurance company jointly and severally liable to pay the amount of compensation along with simple interest. Hence, the insurance company is before this Court in this appeal.
02] The learned Counsels appearing for the parties have urged that the Tribunal has committed an error in holding the insurance company jointly and severally liable to pay the amount of compensation without granting the appellant-insurance company liberty to recover the said amount from the owner of the vehicle.
03] The points for determination are as under :
1. Whether the Tribunal has committed an error in holding the insurance company jointly and severally liable along with the owner of the vehicle to pay the amount of compensation?
2. Whether the appellant-insurance company can be granted liberty to recover such amount from the owner of the vehicle?
04] The offending vehicle was the Tempo Trax No. MH-28-H-
1514, which was validly insured on the date of occurrence of the accident with the appellant-insurance company. The Tribunal has ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:27:32 ::: 3 fa.743.11.jud recorded finding in paragraph 11 of the judgment that it cannot be said that non possession of valid driving licence has contributed towards the accident and, therefore, the insurance company cannot be absolved from liability to reimburse the owner/insured.
05] Undisputedly, the accident occurred on 14/01/2005. The driving licence produced on record by the Regional Transport Officer shows that the said licence was valid for the period from 27/01/2005 to 26/01/2008. Thus, the licence was taken out subsequently. There is nothing on record to show that on the date of occurrence of accident, the driver of the offending vehicle was possessing a valid driving licence.
In such a situation, the breach of policy has been clearly established.
The insurance company cannot, therefore, be held liable to indemnify the owner, though it cannot avoid its liability towards the claimants.
The Tribunal has, therefore, committed an error in holding that the appellant-insurance company jointly and severally liable to make the payment of compensation. The point No.1 is answered accordingly.
06] The claimant is the third party so far as the offending vehicle i.e. Tempo Trax is concerned and, therefore, it is open for the appellant-insurance company to recover the said amount of ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:27:32 ::: 4 fa.743.11.jud compensation, if paid to the claimant, from the owner of the vehicle in accordance with law. The point No.2 is answered accordingly.
07] For the reasons stated above, the award passed by the Motor Accident Claims Tribunal on 14/06/2010 is modified as under :
1. Respondent-Mohm. Arif Sk. Lal, the owner of the vehicle bearing No. MH-28-H-1514 is held liable to pay the amount of compensation of Rs.85,275/- (inclusive of NFL amount) to the claimant along with simple interest at the rate of Rs.7.5% per annum from the date of application till its realization.
2. The insurance company is directed to pay the amount of Rs.85,275/- along with the interest at the rate of Rs.7.5% per annum as per the order passed the Motor Accident Claims Tribunal to the claimant and thereupon shall be entitled to recover such amount from the owner of the vehicle.
3. It is informed that the entire amount has already been deposited in this Court by the appellant-insurance company, ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:27:32 ::: 5 fa.743.11.jud the same is permitted to be withdrawn by the claimant along with interest, if any, accrued thereon.
4. No order as to costs.
JUDGE *sdw ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:27:32 :::