Smt. Gayatri vs Jamil Ahmad
2021 Latest Caselaw 444 MP

                                     1                               MA-2417-2015
        The High Court Of Madhya Pradesh
                   MA-2417-2015
               (SMT. GAYATRI AND OTHERS Vs JAMIL AHMAD AND OTHERS)

17
Indore, Dated : 03-03-2021
      Shri Rajendra Shrivastava, learned counsel for the appellants/
Claimants.
      Shri Anil Kumar Goyal, learned counsel for the respondent No.3.

This appeal by appellants/ claimants is directed against the award dated 03 October, 2015 passed by 2nd Additional Member, Motor Accident Claims

Tribunal, Dewas passed in Claim Case No.44/2014.

The tribunal has awarded the compensation to the tune of Rs.7,31,993/- payable to the claimants by owner and driver of the offending vehicle; motorcycle bearing No.MP09-MT-3290.

The Insurance Company has been absolved of the liability to pay compensation on the ground that driver of offending motorcycle Jamil Ahmad did not have driving licence, therefore, there was a breach of condition of the insurance policy.

Learned counsel for the appellants/ Claimants submits that existence of

valid insurance policy, factum of accident, involvement of the vehicle and occurrence of the death are found proved by the tribunal. However, the finding that driver did not have driving licence is perverse and dehors the record. The evidence brought on record by the respondents in that behalf is not worth credence. The sole testimony of non-applicant's witness DW-2- Manju Sharma, Assistant Grade-II Clerk RTO Office, Indore as discussed in para-13 of the award suggests that she deposed that the driver did not have driving licence but, without producing any documentary evidence. That apart, Ex.P-4 is the seizure memo dated 30/06/2013 by the police, which suggests that licence of the driver Jameel Ahmad was also seized after occurrence of the incident on 29/01/2013. This relevant piece of evidence has been ignored by the tribunal. Hence, it is incorrect to say that there was breach of 2 MA-2417-2015 conditions of the insurance policy. The tribunal therefore, fell in error absolving the Insurance Company from the liability to pay compensation. In the alternative, it is submitted that if for any reason, the Insurance Company is held to be rightly absolved by the tribunal, a direction may be given by this Court to the insurance company to pay compensation to the claimants and recover the same from the owner of the vehicle namely Riyaz Ahmad. To

bolster his submission, learned counsel relies upon the judgment rendered by the Hon'ble Supreme Court in case of Shamanna and Another Vs. Divisional Manager, Oriental Insurance Company Limited and Others reported in (2018) 9 SCC 650.

Per contra, Shri Anil Kumar Goyal, learned counsel for the respondent No.3/ Insurance Company submits that while answering issue No.2 in the aforesaid context, the tribunal has recorded the findings in para-11 of the impugned award that the driver of the offending vehicle despite notice by the insurance company did not produce the driving licence, therefore, there was breach of conditions of the Insurance Policy. Hence, tribunal did not commit any illegality while absolving the insurance company from the liability to pay compensation to the claimants.

Upon hearing learned counsel for the parties, perusal of the impugned award and evidence led by the parties, in the considered opinion of this Court, the findings recorded on issue No.2 is found to be not plausible. Moreso, the seizure memo Ex. P-4 dated 30/06/2013 escaped consideration by the tribunal.

Be that as it may, this Court is of the view that the award dated 03rd October, 2015 passed by the Claims Tribunal, Dewas on merits is though not pregnable, but ends of justice demands that a direction be issued to the insurance company to pay the amount of compensation within three months from today to the claimants and recover the same from the owner of the vehicle- Riyaz Ahmad. The aforesaid direction is issued bearing in mind the dictum of the Hon'ble Supreme Court in the case of Shamanna and 3 MA-2417-2015 Another (surpa). In para 6 & 7 of the aforesaid judgment relying upon the judgment rendered in the case of National Insurance Company Vs. Swaran Singh reported in (2004) 3 SCC 297 wherein it has been held that onus is always upon the insurance company to prove that driver had no valid licence and that there was breach of policy condition. Where the driver did not possess the valid driving licence and there are breach of policy condition "pay and recover" can be ordered in case of third party risk.

Accordingly, the award dated 03rd October, 2015 passed by the Claims Tribunal, Dewas is modified to the aforesaid extent.

The appeal stands disposed of accordingly.

(ROHIT ARYA) JUDGE

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