Shaikh Sheru Shaikh Hamza vs Dnyanoba Angadrao Shirsat And Anr
2016 Latest Caselaw 1399 Bom

                                      1                    FA 1939.2010.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD




                                                                         
                         FIRST APPEAL NO. 1939 OF 2010




                                                 
                                      ...

                 SHAIKH SHERU SHAIKH HAMZA
                 age 26 years, Occ. Mason,




                                                
                 Resident of Peth Mohalla,
                 Parli Vaijnath, Tq. Parlivaijnath,
                 Dist. Beed.                        ..Appellant..
          
                 VERSUS




                                     
         1.      DNYANOBA ANGADRAO SHIRSAT 
                             
                 age  major, Occ. Driver and Business,
                 Resident of Telghana,  Tq. Ambajogai,
                 District Beed.
                            
         2.  I.C.I.C.I. Lombard, Motor Insurance,
             General Insurance Company,
             Through its Branch Manager,
      

             Adalat Road, Aurangabad.          ....Respondents..
                                   ...
   



                Advocate for Appellant : Mrs A N Ansari  
           Advocate for Respondent 2 : Mr S G Chapalgaonkar
                    Respondent No.1 served absent. 
                                   ...





                        CORAM : V.K. JADHAV, J.

Dated: April 11, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the Judgment and order

passed by the learned Member, Motor Accident Claims

Tribunal, Ambajogai dated 17.6.2010 in MACP

No.7/2009 the original claimant has preferred this

appeal to the extent of finding of the Tribunal

2 FA 1939.2010.odt

exonerating the Respondent No.2 Insurer from the

liability to pay the compensation.

2. Learned counsel for the appellant submits that,

the Respondent/insurer has failed to prove that there is

breach of condition of the insurance policy. Learned

counsel submits that, the Respondent-insurer has failed

to prove that the driver of the vehicle involved in the

accident was not having valid and effective driving

licence to drive the vehicle at the time of accident.

Learned counsel submits that, in the alternate, in view

of the authoritative pronouncement of the Supreme

Court in case of S.Iyyapan Vs. United India Insurance

Company Limited reported in 2013 (6) Mh.L.J. 1, the

Tribunal should have directed the Respondent-insurer

to pay the compensation as per the award and then

recover the same from the respondent owner of the

vehicle.

3. Learned counsel for respondent No.2-insurer

submits that, the Insurer has examined the witness

Afroz Siddiqui at Exh.14. Learned counsel submits that

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said Arfoz Siddiqui is working as a Senior Clerk in the

RTO office of the concerned region and said witness has

deposed before the Tribunal that respondent no.1 was

not having valid and effective driving licence at the time

of accident. Learned counsel submits that, in view of

this, there has been breach of conditions of the policy

and therefore, the respondent-insurer is not liable to

pay the compensation. Learned counsel submits that,

the Tribunal has rightly fastened the liability on

respondent No.1 and dismissed the claim petition as

against respondent no.2 insurer. Learned counsel

submits that, no interference is required and thus the

appeal is liable to be dismissed.

4. So far as the defence raised by the Respondent-

insurer is concerned, the insurer has examined the

witness from the RTO office of the region and said

witness has deposed before the Tribunal that

respondent no.1 was not having valid and effective

driving licence at the time of accident. It is well settled

that there is distinction between L.M.V. and Transport

vehicle. A Transport vehicle may be a light vehicle but

4 FA 1939.2010.odt

for the said purpose a distinct licence is required to be

obtained. I do not find any fault in the impugned

judgment to fasten the liability against respondent no.1

owner.

5. The Supreme Court in case of S.Iyyapan (supra),

relied upon by the learned counsel for the appellant-

claimant in paragraph No.17 and 18 of the Judgment

has made following observations :-

17. The heading "Insurance of Motor Vehicles against Third

Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance

compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get

compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the

risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.

18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia

5 FA 1939.2010.odt

on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who

was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a

driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light

motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to

recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured

for recovery of the amount in the event there has been violation of any condition of the insurance policy."

6. In view of the authoritative pronouncement of the

Judgment by the Supreme Court, the Tribunal ought to

have directed the respondent no.2 Insurer to satisfy the

award passed as against respondent-owner and then

recover the same from him.

7. In view of this, following order is passed.

ORDER

I. The appeal is hereby partly allowed.

II. The Judgment and Award passed by the learned Member, Motor Accident Claims Tribunal, Ambajogai dated 17.6.2010 in MACP No.7/2009 is hereby modified to the

6 FA 1939.2010.odt

following effect :-

"The respondent No.2 - I.C.I.C.I.

Lombard Motor Insurance General

Insurance Company shall pay the amount as per the award to the claimant and recover the same from the

respondent No.1-Owner Dnyanoba Angadrao Shirsath and for that purpose respondent No.2 Insurer is not required

to initiate any independent proceeding."

III.

Rest of the Judgment and Award passed by

the Member, Motor Accident Claims Tribunal, Ambajogai dated 17.6.2010 in MACP No.7/2009 stands confirmed.

                   IV.    Award be drawn up accordingly.


                   VI.    First Appeal is disposed of.

VII. In the circumstances there shall be no order as to costs.

sd/-

( V.K. JADHAV, J. )

...

aaa/-