Walmikrao Jayaram Kajale vs Uttam Buvaji Raut And Ors.
2004 Latest Caselaw 359 Bom

JUDGMENT

P.S. Brahme, J.

1. This is an appeal preferred by appellant/original claimant against the order passed by Motor Accident Claims Tribunal, Ahmednagar in Motor Accident Claims Tribunal No. 87 of 1983, dated 24th August, 1988 dismissing his application for compensation.

2. The applicant on 12th October, 1983, filed the aforesaid application for compensation for the injuries sustained by him in the accident which took place on 4th May, 1983 at about 10.30 p.m. on Kopargaon Railway Station road, and he has claimed compensation of Rs. 25,000/- from respondents.

3. Respondent No. 1 at the time of the accident, was riding motor cycle No. MTC-892 which was owned by respondent No. 3 had given the said motorcycle to respondent No. 2 who in turn handed it to respondent No. 1. It is admitted that the relevant time, the applicant was riding his motorcycle MXM-1874 which was insured with respondent No. 4 Insurance Company, while motorcycle belonging to respondent No. 3 was insured with Insurance Company, respondent No. 5.

4. It was the case of appellant/applicant that he was returning from his field to Kopargaon by Kopargaon Railway Station road, while respondent No. 1 who was riding the motorcycle of respondent No. 3, came in excessive speed from his behind and in the course of over taking his motorcycle, respondent No. 1 gave a severe dash from left side, as a result of which the applicant, sustained bleeding injuries, and compound fracture to his left ankle. The applicant was immediately admitted in the hospital of Dr. Jadhav at Kopargaon. He was in the hospital till 16th June, 1983 undergoing treatment.

5. The claim is contested by respondents No. 1 to 3 by their common written statement (Exh. 17) denying the manner in which the injuries were sustained by the applicant in the accident. It was contended that respondent No. 1 was proceeding to Shirdi along with his friend Vishvanath Digambar. As the motorcycle failed, they were bringing by pushing it. When the applicant came from behind riding his motorcycle and as respondent was knowing to him, the applicant suggested to tie the motorcycle with a rope to his motorcycle so that respondent No. 1's motorcycle could be taken to workshop. It is contended that after the rope was made available, respondent No. 1's motorcycle was toed to the motorcycle of applicant and while in the process of pulling the motorcycle which was tied by rope to the motorcycle of the applicant, as the rope gave way, the applicant could not control his vehicle, he fell down and sustained injuries. It was respondent No 1 who took the applicant to the hospital of Dr. Jadhav for treatment. He also went to the house of applicant to inform about the accident and injuries suffered by the applicant. It is, therefore, contended that the respondents are not at fault and, therefore, they are not liable to pay compensation to the applicant.

6. Respondents No. 4 and 5 resisted the claim by their written statement (Exhs. 14 and 19) and denied the liability to pay compensation. In the alternate respondent No. 5 insurance company alleged that compensation for personal injuries sustained by the applicant cannot be covered under insurance policy.

7. Before the Motor Accident Claims Tribunal, the parties went on trial, with issues were framed at Exh. 20. Applicant led oral evidence by examining himself and witnesses Ashok Shelke, and Ramesh Sapkale and also placed reliance on copy of F.I.R (Exh. 97), copy of notice Exh. 67 and reply given by respondents (Exh. 68). As against that respondent No. 1 himself entered into the witness box to give evidence and also examined one Vishvanath Digamber Ture a friend of his, who was according to him on the motorcycle which was driven by him. The Claims Tribunal while deciding main controversy about the factum of accident, on the evidence on record, came to the conclusion that the applicant has failed to prove that he sustained injuries as a result of or in the accident involving the motorcycle driven by respondent No. 1. The trial Court has accepted the theory put forth by the respondents No. 1 to 3 in respect of accident that of took place. The trial Court found that applicant has failed to establish that the motorcycle driven by respondent No. 1 gave dash to the motorcycle of appellant which resulted into applicant having sustained injuries. It was found that as a result of injury admittedly sustained by the applicant, he has incurred 10% partial permanent disability. The trial Court having found that; there was no negligence on the part of the respondent No. 1, applicant was not entitled to claim compensation for the injuries which he has sustained and, therefore, trial Court did not decide other issue involved in this case but proceeded to dismiss the application.

8. Mr. N.C. Garud, the learned counsel appearing for the appellant submitted that the learned Member of the Tribunal erred in rejecting the claim of applicant and accepting the theory put forth by respondents No. 1 to 3 about the accident wherein admittedly appellant sustained severe injury of fracture. He submitted that : the finding recorded by the Tribunal is against the evidence on record. That the Tribunal has not appreciated the evidence in correct perspective. The learned counsel submitted that the learned Member of the Tribunal ought to have at least granted compensation on account of no fault liability under Section 92-A of the Motor Vehicles Act, when admittedly the factum of accident was not in dispute. The learned member has grossly erred in rejecting the application of the applicant for compensation on account of no fault liability under Section 92-A of the Motor Vehicles Act. He, therefore, erred that the appeal be allowed by setting aside the order passed by the learned Member of Motor Accident Claims Tribunal and compensation as claimed by the appellant/original claimant, be granted.

9. Shri P.V. Mandlik, learned counsel appearing for respondent No. 1, supported the Judgment of learned Claims Tribunal. He submitted that the appellant has failed to prove that the appellant sustained injury as a result of accident that took place in the manner in which it was alleged and on account of negligence on the part of respondent No. 1 in driving the motor cycle.

10. Shri V.N. Upadhye, learned counsel appearing for respondents No. 4 and 5 supported the Judgment of learned Claims Tribunal and the finding recorded by the Tribunal that the appellant sustained injuries as a result of appellant having fallen down from his motorcycle in the process of pulling the motorcycle driven by respondent No. 1 which was tied by rope which gave way. There was no negligence on the part of respondent No. 1. In fact, it is submitted that even accepting the theory propounded by respondents, by no stretch of imagination, it can be said that the motorcycle driven by respondent No. 1 is involved in the accident and, therefore, no compensation for no fault liability could be claimed. It is submitted that so far as respondent No. 4 insurance company with which motorcycle of appellant is insured is under no liability to pay compensation to the appellant as under the policy the risk of the owner of the vehicle is not covered. So far as respondent No. 5, the insurance company with which motorcycle of respondent No. 3 is insured cannot be saddled with liability for compensation even for "no fault" as there was no involvement of the vehicle owned by respondent No. 3. The learned counsel in the alternate submitted that in case it is found that the vehicle driven by respondent No. 1 is liable to pay compensation for no fault liability, then in view of the fact that respondent No. 1 was not having valid driving licence, respondent No. 5 the insurance company should be exonerated of that liability or in the alternate if respondent No. 5, is found liable jointly and severally along with respondent Nos. 1, 2, 3 for that liability, liberty be granted to respondent to get recovered the amount of compensation from the owner of the vehicle i.e. respondent No. 3.

11. Before embarking on the submissions made by the counsel for the parties and the findings recorded by the learned Member of Tribunal, it would be appropriate to state few facts, relevant as they are, over which there is no dispute. On the date when the alleged accident took place, the appellant who is owner of motorcycle bearing No. MXM-1874 and which was insured with respondent No. 4 was riding motorcycle by Kopargaon Railway Station road. It is not disputed that at the material time respondent No. 1 was riding motorcycle bearing MTC-892 on that day which was owned by respondent No. 3 and it was insured with respondent No. 5. It is admitted that initially the motorcycle was handed over to respondent No. 2 by respondent No. 3 and in turn it was respondent No. 2 who gave it to respondent No. 1. It is not disputed that as a result of accident, appellant who was riding his motorcycle fell down and sustained bleeding injuries and compound fracture to his left ankle. He was immediately admitted in the hospital of Dr. Jadhav for treatment. It is also borne out on the evidence on record that it was respondent No. 1 who took the appellant to the hospital of Dr. Jadhav from the place of accident. It is borne out on the evidence of Dr. Narendra Javheri that in whose hospital the appellant was admitted on 11-5-1983 as indoor patient and received treatment for the injuries sustained by him and Dr. Javheri found that the appellant had sustained compound fracture, dislocation of left ankle and that appellant had restrictions of movement of left ankle joint along with disfiguration of the medial aspect of the joint and in his opinion appellant had sustained 20% partial disability in respect of movements of his left ankle which is of permanent nature.

12. The factum of injury sustained by appellant and consequential permanent disability of 20% incurred by him is no more in dispute. However, what is disputed by respondents is the manner in which the accident took place.

According to appellant while he was riding his motorcycle, the motorcycle driven by respondent No. 1 gave dash to his motorcycle and as a result of that appellant fell down from his motorcycle and sustained injury. The respondents having controverted these allegations regarding the manner in which the accident took place, came up with the case that the motorcycle driven by respondent No. 1 failed; it was toed to the motorcycle of appellant and in the process of pulling the motorcycle, as the rope gave way, appellant lost control on his motorcycle and fell down and sustained injuries, when his leg got clamped under his motorcycle.

In order to substantiate his allegations appellant examined himself and two witnesses namely Ashok Shelke (P.W. 2) who claimed to have accompanied appellant; on his motorcycle but he claimed that he was riding the motorcycle and the appellant was sitting on the pillion seat and witness Ramesh Sapkale as an eye witness to the accident. However, this witness Ramesh Sapkale gave candid admission in cross-examination stating that he did not see the accident personally. The evidence of appellant and witness Ashok Shelke on the point of accident has been shattered totally and, therefore, the learned Member of Tribunal discarded their evidence. In the first place there is great deal of controversy over the fact as to who was riding the motorcycle whether the appellant Walmik as claimed by him in his evidence or witness Ashok who emphatically stated in his evidence that he was riding the motorcycle. The third witness examined by the appellant namely Ashok Shelke though claimed to have eye witnessed the accident, candidly admitted that he did not see the accident.

Therefore, the controversy as to who was riding the motorcycle goes to the root of the claim of the appellant as to the factum of accident, the manner in which it is alleged to have taken place.

13. Admittedly, there is inordinate delay in giving information to the police regarding the accident. The appellant has failed to explain the delay. If the accident has taken place in the manner in which it is alleged by the appellant, in all probability, it must have been reported to the police by lodging first information report. In the background of the fact that there is no acceptable evidence as to the manner in which the accident took place, delay, in reporting accident to police was rightly found by the learned Member of the Tribunal, fatal. That itself makes the claim of appellant doubtful and that is much more so when appellant himself was not able to explain the delay. When appellant himself was a practicing advocate, who in all probability must be presumed to know that the factum of accident is to be reported to the police station immediately.

14. The learned Member of the Tribunal did not accept the evidence of witness Ashok Shelke as his version is contrary to that of the appellant. It is significant to note that this witness stated in his evidence that because of the dash, he and the appellant were thrown away from the motorcycle and both of them sustained injuries. It is found that as a matter of fact this witness Ashok has not received even a single injury. What is surprising to note is that, it was appellant who candidly admitted in his cross-examination that Ashok Shelke did not sustain any injury in the accident. In addition to that the controversy as to who was driving the motorcycle makes the presence of this witness at the time of accident, very doubtful.

15. The appellant has admitted that the respondent No. 1 has come to Dr. Jadhav's hospital along with him. In this background the testimony of the appellant and his witness Ashok that respondent No. 1 went away as soon as he gave dash to the motorcycle of the appellant is absolutely false. In the nature of things, the conduct of the respondent No. 1, accompanying the appellant to the hospital of Dr. Jadhav for treatment is consistent with the theory put forth by the respondent that in the process of pulling the motorcycle the accident took place when the rope gave way and appellant sustained injury as a result of falling from the motorcycle. As against this, conduct of respondent No. 1 in immediately taking appellant to the hospital is inconsistent with the theory as to the accident as claimed by the appellant. This is in the sense if really respondent No. 1 was responsible for accident and consequently for injury sustained by appellant, he would have, in all probability, not accompanied the appellant to the hospital.

16. As against that respondent No. 1 in his deposition has stated as to the manner in which the accident took place. Though respondent No. 1 was subjected to cross-examination, his evidence remained undisturbed. The counsel for appellant could not bring on record any infirmity or inconsistency in his evidence though he was subjected to cross-examination at length. That apart his evidence is corroborated by witness Vishvanath Ture who had accompanied respondent No. 1 on the motorcycle on the day when the accident took place. In his evidence he has categorically stated that while they were proceeding, clutch wire of the motorcycle gave way and the vehicle could not be repaired and when they both were pushing the motorcycle, it was appellant who came on his motorcycle from behind and after identifying respondent No. 1 told him that he would toe the motorcycle of respondent No. 1 to his motorcycle by rope and then the motorcycle would be pulled to bring it to the garage. He has further stated in his evidence that while the motorcycle was pulled after it was toed to the motorcycle of the appellant, he saw the rope by which the motorcycle was tied, gave way and appellant lost his balance and fell down and sustained injuries. This evidence of witness fully corroborates the version of respondent No. 1. Nothing has been brought on behalf of appellant in his testimony to discredit it. There is absolutely no reason for this witness to give evidence against the appellant. The learned Member of the Tribunal has rightly accepted the evidence of this witness as corroborative to the evidence of respondent No. 1 and found that the theory put forth by the respondent is established on the evidence and a finding is recorded that the appellant had sustained the injury as a result of falling from his motorcycle when the rope by which the motorcycle of respondent No. 1 was tied, gave way. So considering the evidence, even on reappraisal independently as the court of appeal, I have no hesitation in coming to the conclusion that the theory propounded by the respondents as to the manner in which the accident took place is probable and plausible. As against that appellant has miserably failed to establish that the incident took place in the manner in which it was alleged by him. The circumstances, attaining the case as observed in earlier part of the judgment, totally negate, the claim of applicant as to the manner in which accident took place. If that is so then, the learned Member of the Tribunal was right in rejecting the claim of appellant for compensation for the injury sustained by him.

17. This takes me to consider alternate submission of learned counsel for the appellant as regards compensation for no fault liability. It is to be noted that the appellant in his main application for compensation for injuries sustained by him in accident also claimed vide prayer Clause-"D" for immediate compensation of Rs. 7,500/- on no fault basis, for permanent disablement caused due to accident. In addition to this, as the record shows before the trial commenced, the appellant had filed application Exh. 22 claiming there in compensation on account of no fault liability as provided under Section 92-A of the Motor Vehicles Act. His application was resisted mainly by respondent Nos. 3, 4 and 5 denying the factum of accident and also the involvement of the vehicle. The learned Member of Claims Tribunal by order dated 30-9-1985 rejected the application mainly on the ground that appellant even prima-facie failed to show that the accident involving the motorcycle of respondent No. 3 took place in the manner in which it was alleged. The learned Member, in fact accepted the theory put forth by respondents and, therefore, found that appellant sustained injury as a result of fall from his motorcycle as the rope which was tied to the motorcycle of respondent No. 3 gave way. Therefore, the court expressed the opinion that the liability to pay compensation on the principle of no fault under Section 92-A of the Motor Vehicles Act cannot be fastened on the shoulders of respondents. The tribunal further observed that admittedly, the main petition was itself ripe for hearing and there would be adjudication of the claim on the basis of evidence that may be adduced during the hearing of the main petition. That is how the Tribunal proceeded to reject the application. However, directed that the hearing of the main petition was expired.

18. Mr. V.N. Upadhye, the learned counsel for the respondents No. 4 and 5, submitted that appellant having not challenged the order of rejection of his claim for compensation under no fault liability, cannot agitate in this appeal for compensation under no fault liability, particularly when the Tribunal has rejected claim in that regard by dismissing his application (Exh. 22). As against this, Mr. N.C. Garud, learned counsel for the appellant submitted that in this appeal, the appellant has challenged the order of rejection of his claim for compensation on no fault liability and also claimed interim relief. He pointed out that in the main petition the appellant has claimed interim relief in terms of prayer Clause "D" claiming compensation on no fault liability.

19. It is not disputed that under Section 173 of Motor Vehicles Act of 1988, a provision is made for appeal to the High Court by grieved persons against the award of Claims Tribunal, subject to the provision of Sub-section (2). As per Sub-section (2) of Section 173 of Motor Vehicles Act, no appeal shall lie against any award of Claims Tribunal, if the amount in dispute in the appeal is less than Rs. 10,000/-. A reference is also necessary to Section 165 of the Motor Vehicles Act, 1988, wherein it is provided that Motor Accident Claims Tribunal have been constituted for the purpose of adjudication upon the claims for compensation is respect of accidents involving the death, of, or bodily injury, to the persons arising out of the use of motor vehicle, or damages to any property of third party, so arising or both. Explanation to Section 165 Sub-section (1) of the Motor Vehicles Act, 1988 is to the effect that for the removal of doubt it is hereby declared that the expression "claims for compensation in respect of accidents involving the death or bodily injury to persons arising out of use of motor vehicles," includes claims for compensation under Section 140 of the Motor Vehicles Act arising out of use of motor vehicles, includes claims for compensation under Section 140. Taking into consideration the explanation to Section 165 and also the provision contained in Section 165 of the Motor Vehicles Act which provides for filing of application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165, it is crystal clear that when appeal under Section 173 Sub-section (1) is preferred against the passing of the award or dismissal of claim for compensation, the appellant can very well agitate in that appeal the order of rejection of his claim for compensation on "no fault liability." I am fortified by the recent pronouncement of the Full Bench of this Court reported in Divisional Controller, MSRTC, Jalgaon v. Bapu Onkar Chaudhari, 2003(4) Mh.L.J. 990, wherein it is held that appeal is not maintainable against no fault liability under Section 173 of the Motor Vehicles Act. Therefore, there is no provision under the Act where under independent appeal against the order of rejection or granting the claim for compensation for no fault liability. Therefore, when appeal is preferred against the rejection of main petition for claim for compensation, in that appeal the appellant/original claimant can agitate the claim for compensation on no fault liability which has been rejected by the trial Court.

20. In the instant case, as stated earlier appellant has specifically claimed interim relief for compensation on no fault liability in this appeal and also challenged the order passed by the Member Accident Claims Tribunal rejecting his application for that purpose.

21. Mr. V.N. Upadhye, learned counsel for respondent Nos. 4 and 5 submitted that the learned Member of the Tribunal has rejected appellant's claim even for compensation on no fault liability accepting the theory put forth by the respondents. If that theory is accepted, then there is involvement of vehicle of respondent No. 3 in the accident. There could be no use of vehicle of respondent No. 3 in the sense so as to attribute cause to this vehicle for appellant's sustaining injuries. It is submitted that if that is so, then respondent No. 3 and respondent No. 5 cannot be held accountable for compensation even of on no fault liability basis. In earlier part of the judgment I have extensively dealt with the submission made by the learned counsel for the appellant as to how even accepting the theory of respondents, involvement of vehicle of respondent No. 3 and also use of the said vehicle is acceptable to make respondent No. 3 accountable for compensation for no fault liability.

22. In this context, it is appropriate to refer to the decision of Apex Court in Shivaji Dayanu Patil and Anr. v. Vatschala Uttam More, . In that case, claim for compensation on no fault liability was preferred by the legal heirs of deceased and also some persons who suffered injuries as a result of accident which occurred in very peculiar circumstances. There was collision between a truck and patrol tanker and tanker turned turtle. Thereafter, four and half hours of the accident the tanker exploded and caught fire resulting in injuries to and death of several persons assembled near it. The claim for compensation on no fault liability was acceptable by High Court and the matter challenging the order of the High Court was before the Apex Court. Before the Apex Court contention was raised that at the time when explosion and fire took place the petrol tank which was lying turtle was not suitable or fit for use on the road and, therefore, there was neither use of the vehicle, nor involvement of the same in the accident that took place, in which persons died and others suffered injuries. The Apex Court has while rejecting the appeal held that the word "use" in the expression "use of motor vehicle" has a wider connotation and covers accidents which occur both when the vehicle is in motion and when it is stationary; use of a vehicle does not cease when it has been rendered immobile on account of breakdown or mechanical defect or accident. In my considered opinion, this decision of Apex Court is complete answer to the submission made by Mr. V. N. Upadhye, learned counsel for the respondents No. 4 and 5. In other words, merely because the motorcycle of respondent No. 3 was not directly involved in the accident, in the sense it was claimed by appellant, when the accident has taken place as a result of or in the process of pulling the motorcycle of respondent No. 3 because the rope by which it was tied to the motorcycle of appellant gave way, respondent No. 3 as the owner of the vehicle is accountable for compensation to appellant for the injuries he suffered at least on the ground of no fault liability.

23. It is true that appellants claimed for compensation in main petition has been rejected by the Tribunal but that by itself does not disentitle the appellant for compensation for no fault liability. In catena of decisions of this Court it has been clarified as to the scope of inquiry in application under Section 140 of the Motor Vehicles Act, as regards compensation on principle of no fault. Our High Court in Raphik Mehbub Parkhali v. Anantkumar Pravinkumar Jajal and Anr., 1996(1) Mh.L.J. 106 has observed that scope of enquiry in application under Section 140 is extremely limited. What has to be ascertained is if accident had arisen out of use of motor vehicle; whether (i) the accident has arisen out of use of the motor vehicle; (ii) the said accident has resulted in permanent disablement of the person who is making the claim or the death of a person whose legal representatives are making the claim and (iii) the claim is made against the owner and insurer of the motor vehicle involved in the accident. The Court has observed further that once these factors are established, the claimant is entitled to succeed in an application under Section 140 of the Act.

24. In the decision of New India Assurance Co. Ltd. and Ors. v. Khairunsi Mirad Hajarat Mulla and Ors., 1994 ACJ 929, in a claim for compensation of no fault liability under Section 92-A (section 140 of 1988 Act) contention was raised on behalf of Insurance Company disputing the liability to pay compensation under no fault liability on the ground that passenger was carried in goods vehicle in violation of policy, that the pillion rider was not covered by the policy and person driving the motorcycle was not having a valid driving licence and the deceased was travelling unauthorisedly in the insured vehicle. It was held that while considering claim for compensation under no fault liability these factors cannot be considered, nor it is in the scope of enquiry contemplated under the Act while adjudicating the application for compensation under Section 92-A (section 140 of 1988 Act). The claim cannot be defeated on these grounds. The provisions are attracted no sooner it is either admitted or it is apparently shown that the owners vehicle was involved in the accident. It is also provided under Sub-section (3) of Section 140 of the Motor Vehicles Act that in any claim for compensation under Sub-section (1), the claim shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. It is also clear from Sub-section (4) of Section 140 of the Motor Vehicles Act of 1988 that the claim shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. Therefore, the contention raised by learned counsel for respondents 4 and 5 regarding respondent No. 1 was having no valid driving licence at the time when the accident took place cannot come in the way of entitlement of appellant for compensation on no fault liability. It is in this sense even if there was breach of condition of policy as a result of respondent No. 1 driving the motor vehicle without their being valid licence, that will not affect appellant's claim for compensation on account of no fault liability. It is in this context, it is also significant to note that even after accepting the theory put forth by respondents, though there was no fault on the part of respondent No. 1 in riding the vehicle of respondent No. 3 as the accident took place as the rope gave way and appellant fell down from the motorcycle, when there was involvement of vehicle of respondent No. 3 in the wider sense, appellant was entitled for compensation for no fault liability. Therefore, the trial Court committed an error in rejecting appellant's claim for compensation on account of no fault liability. It is significant to note that the Member of Motor Accident Claims Tribunal who adjudicated the main petition, did not consider the claim of the appellant for compensation for no fault liability though he proceeded to dismiss the main petition of the appellant. As stated earlier, though earlier claim for compensation on no fault liability has been rejected by the Tribunal by rejecting application (Exh. 22), it was imperative on the part of the Tribunal while adjudicating main claim petition to see whether the appellant was entitled to claim for compensation under no fault liability. Therefore, there is much substance in the contention of the learned counsel for the appellant in entitlement of the claim for no fault liability.

25. Mr. V.N. Upadhye, learned counsel for the respondents No. 4 and 5 submitted that in case the liability is fastened on respondent No. 5, which is the insurer of offending vehicle of respondent No. 3, then respondent No. 5 after having satisfied the award and having proved that respondent No. 1 was not holding valid driving licence to the knowledge of respondent be allowed to recover the amount under award from the insured-respondent No. 3. In this context, it would be apt to make a reference to the decision of Apex Court in United India Insurance Company Ltd. v. Lehru and Ors., 2003 AIR SCW 1695, wherein it has been held that Insurance Company cannot avoid it's liability towards third party on the ground that the licence of a driver of vehicle was a fake licence. In order to avoid liability under Section 149(2)(a)(ii) it must be shown that there is a "breach" on the part of the insured. When the owner has satisfied himself that the driver has a licence and is driving competently, there would be no breach of policy, the Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless then prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured.

26. I am fortified with the latest pronouncement of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors., 2004 AIR SCW 663. Insurer is entitled to raise a defence in a claim petition as to the breach of policy condition namely disqualification of driver or invalid driving licence of the driver. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

27. The liability is of the Insurance Company to satisfy the decree passed in favour of the third party at the first instance and to recover the awarded amount from the owner or the driver thereof. The Tribunal and the Court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under Sub-clause (ii) of Clause (a) and Sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act.

28. In the instant case, respondent No. 5 has established on evidence that respondent No. 1 who was ultimately found driving the offending vehicle i.e. motorcycle of respondent No. 3 was not holding driving licence. No evidence has been laid on behalf of respondent No. 3 to controvert the contention of respondent No. 5. No evidence was led to show that respondent No. 1 was holding valid driving licence at the relevant time. No. evidence has been led by respondent No. 3 at least to the effect that respondent No. 3 had no knowledge that respondent No. 1 was not having driving licence. In view of this factual position, though respondent No. 5, as insurer of the vehicle of respondent No. 3 is jointly and severally liable to pay compensation as awarded by this Court, liberty is given to respondent No. 5 to recover the amount deposited or paid by it in satisfaction of the award from respondents No. 3 and 1.

29. As per the provision contained in Section 92-A of the Motor Vehicles Act, as it was prevalent on the date when the accident took place, appellant was entitled to amount of Rs. 7,500/- (Rs. Seven Thousand Five hundred only) as compensation on account of no fault liability. As per the provision contained in Section 110-(CC) (Section 171 of Act of 1988) Motor Accident Claims Tribunal has power to award interest on compensation from the date of application instead of date of award. It is clear that interest can be awarded by the Court or tribunal at such a rate as it thinks fit but the interest cannot be made payable from the date earlier than the date of the claims. In the instant case, appellant has claimed interim compensation is the claim petition which came to be filed on 12-10-1983. It is also matter of record that appellant filed separate application (Exh. 22) on 22-2-1985 claiming interim compensation of Rs. 7,500/- (Rs. Seven Thousand Five Hundred only) as compensation for no fault liability. As stated earlier, the learned Member of Tribunal by his order dated 30-9-1985 rejected appellant's application (Exh. 22). It is also to be noted that learned Member of the Tribunal decided the main claim petition by his order dated 24-2-1988 where by his claim petition has been dismissed. Now, when the appeal is decided, this Court has allowed the claim of appellant for compensation on account of no fault liability. In such state of facts, I hold that appellant is entitled to interest on amount of Rs. 7,500/- (Rs. Seven Thousand Five Hundred only) @Rs. 6% (Rs. Six percent only) per annum from the date of filling of main petition i.e. from 12-10-1983. In view of this finding the appeal will have to be allowed partly.

30. Hence, the order.

(1) Appeal is partly allowed.

(2) Appellant is entitled to amount of Rs. 7,500/- (Rs. Seven Thousand Five Hundred only) with interest @ Rs. 6% (Rs. Six percent only) per annum since 12-10-1983.

(3) The respondents No. 3 and 5 are ordered to pay the amount due to the appellant within four weeks.

(4) It is also made clear that in case respondent No. 5 has satisfied the decree by making payment within time stipulated, respondent No. 5 is entitled to recover the amount paid, from respondent No. 3.

(5) Appeal against respondents No. 1, 2 and 4 is dismissed.

(6) No order as to costs.