Bombay High Court
New India Assurance Co Ltd Br ... vs Onkar Vishram Fegde And Ors on 6 April, 2016
Bench: P.R. Bora
1 FA NO.2722/2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2722 OF 2011
1) New India Assurance Co.Ltd.
Aurangabad, Through its
Divisional Manager,
Adalat Road, Aurangabad. = APPELLANT
(Orig.Resp.1 & 4)
VERSUS
1) Onkar s/o Vishram Fegde
Age: 62 Yrs. Occ. Service,
R/o Pratibha Nagar,Varangaon,
Tq.Bhusawal, Dist.Jalgaon.
2) Pramila w/o Onkar Fegde
Age: 55 Yrs., occu. Household,
R/o as above.
3) M.D.Kaslam Mo.Chhora Mat.
4, St.Savta Marg, Near Victoria
Wy Bridge, Mustafa Bazar,
Mumbai-10.
4) Mohmad Arshad Shahid Aali,
Rashid Compound, G-4, Kosa
Thane, Dist. Thane.
(Appeal stood dismissed as
against Resp.Nos. 3 & 4
vide Court order dt.7.1.2014)= RESPONDENTS
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Mr. MR Deshmukh, Advocate h/for Mr. SG Chapalgaonkar,
Advocate for Appellant;
Mr.GV Wani, Advocate for Respondent Nos. 1 & 2
-----
CORAM : P.R.BORA, J.
DATE : 6th April,2016.
2 FA NO.2722/2011
ORAL JUDGMENT :
1) In the present appeal, the Judgment and Award
passed by Motor Accident Claims Tribunal, Jalgaon (for short the
Tribunal) in Motor Accident Claim Petition No.120/2002
on19.07.2011 is challenged mainly on the ground that, though
the Insurance Company has sufficiently proved that the driver of
the offending vehicle was not holding valid and effective driving
license on the date of accident, the Tribunal has illegally held the
Insurance Company
ig also liable to pay the amount of
compensation to the claimants jointly and severally with the
owner of the vehicle and to pay the compensation amount to the
claimants at the first instance with liberty to recover the same
from the insured.
2) The material on record reveals that, it was not the
case that the driver of the offending vehicle was never holding
any valid driving license to drive the heavy goods vehicle or that
he was disqualified from holding such driving license at the
relevant time. As has come on record, though the driver of the
offending vehicle was holding driving license to drive heavy
goods vehicle from 07.01.1991 its validity period was expired on
27.02.2000 and the same was not renewed till the date of
accident i.e. 25.09.2000.
3 FA NO.2722/2011
3) In view of the facts as above, and having regard to
the law laid down by the Hon'ble Apex Court in the cases of
National Insurance Company V/s Swarnsingh and others,
2004(1) TAC. 321 (SC) and S. Iyyapan V/s United India
Insurance Co. Ltd. and another, (2013) 7 Supreme Court
Cases 62, the objection so raised by the appellant Insurance
Company in exception to the impugned Judgment and Award
cannot be sustained.
4)
As held by the Hon'ble Apex Court in the case of
Swarnsingh (cited supra), "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". The
Hon'ble Apex Court has further held that, "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".
5) In the present case, neither such stand is taken, nor
any evidence is adduced to prove that the insured was guilty of
negligence and failed to exercise due care in the matter of
fulfilling the conditions of the policy regarding the driving of the
4 FA NO.2722/2011
vehicle by a duly licensed driver. The Insurance Company,
therefore, cannot be discharged from the liability to the third
party. It does not appear to me that, the learned Tribunal has
committed any error in directing the appellant Insurance
Company to first pay the amount of compensation to the original
claimants and then to recover the said amount from the insured.
The appeal is devoid of any substance. Hence, the following
order:
ig ORDER
a) The appeal is dismissed.
b) No order as to costs.
(P.R.BORA)
JUDGE
SPR
