Vinod Kumar Gupta, J.
1. The appellant has preferred this Civil First Miscellaneous Appeal against the award dated 24.10.2003 passed by Motor Accidents Claims Tribunal, Jammu (hereinafter referred as the Tribunal in short) in claim petition No. 646 entitled Kamal Kishore v. Rajesh Rathore and Ors. whereby an amount of Rs. 99,350/- along with interest @ 9% per annum has been awarded in favour of the claimant-respondent No. 1.
2. The brief facts material for disposal of this appeal are that on 22.02.1999 the claimant-respondent No. 1 was driving his scooter and when he reached near flyover Ranbir Higher Secondary School Jammu a rashly and negligently driven Matador bearing Registration No. JK02C-7027 came from the opposite direction and hit the scooter of the claimant-respondent No. l as a result of which the claimant-respondent suffered multiple injuries. The claimant-respondent No. l was admitted firstly in Government Medical College Hospital Jammu and then to Dr. Karam Singh Memorial Orthopaedic Hospital and Research Centre, Amritsar. The claimant-respondent No. 1 filed a claim petition claiming compensation of Rs. 15 lacs from the driver, owner of Matador and Insurance Company-appellant with which the said Matador was insured. The learned Tribunal passed the award on 24.10.2003 whereby a compensation of Rs. 99,350/- was awarded in favour of the claimant-respondent No. 1 and directed the appellant-Insurance Company to satisfy the award.
3. Being aggrieved by the said order of the Tribunal, the appellant-Insurance Company has preferred this appeal on the ground that the driver of the Matador namely Rajesh Kumar respondent was not holding valid driving license at the time of accident and as such the Insurance Company can not be burdened with the payment of award amount.
4. I have heard the learned Counsel for the parties and have perused the record on the file.
5. The learned Counsel for the appellant-Insurance Company has submitted that the driver of the Matador with which the accident occurred, was not holding a valid driving license at the time of accident because his license was valid for motor cycle and two wheeler with gear beside LMV and there was no endorsement in regard to PSV. He has further submitted that the Tribunal cannot burden the Insurance Company for payment of awarded amount and recover thereafter from the insured in case the drivers license is invalid. On the other hand, the learned Counsel for the respondent-claimant, has argued that the Insurance Company cannot avoid his liability from payment of the award amount however the Insurance Company can recover the amount in case terms of contract of insurance has been violated.
6. The appellant-Insurance Company raised a plea in the main claim petition by stating that the driver of the vehicle did not possess a valid driving license at the time of accident as such the insurer is not liable to indemnify the owner. A specific issue No. 3 was raised in the claim petition but the appellant-Insurance Company did not lead any evidence for proving the same. The Insurance Company has only produced one certificate issued by the Assistant Regional Transport Officer Rajouri/Poonch informing that the license of driver Raj Kumar was valid for Motor Cycle with gear and LMV vehicles. The learned Counsel for the appellant-Insurance Company has stated that there is no endorsement in respect of PSV on this license. This certificate has not been duly got proved by the appellant in the Tribunal. The learned Tribunal decided this issue against the appellant-Insurance Company on the ground that no evidence has been lead on this issue. In view of the facts stated above, it can safely held that the Tribunal was correct in deciding this issue against the appellant-Insurance Company because of lack of evidence. No positive findings can be given in this respect as there is no positive evidence on the file to hold as to whether the driver-respondent Raj Kumar was holding a valid driving license at the time of accident or not and whether the owner of vehicle was aware of this fact. Hence the contention raised by the learned Counsel for the appellant-Insurance Company cannot be accepted in this regard.
7. The next contention raised by the learned Counsel for the respondent that this Court or Tribunal cannot direct the Insurance Company to satisfy the awarded amount and recover the same from the insured afterwards. In support of his plea the learned Counsel for the appellant has relied upon a case New India Assurance Company Limited v. Prabu Lal reported in 2007 (8) Supreme 343 in which the Hon'ble Supreme Court of India has held that the Insurance Company is not liable for paying any compensation in case the driver holding only a LMV license without an endorsement to drive transport vehicle. He has also relied upon the case United India Insurance Company Limited v. Anubhai Gopichand Thakare and Ors. First Appeal No. 827 of 2006 decided by the High Court of Judicature at Bombay at Aurangabad Bench, wherein it was held that the Insurance Company is not liable to pay the compensation in case of invalid license of the driver and the High Court can not direct the Insurance Company to pay the compensation amount and then recover the same. On the other hand, the learned Counsel for the claimant-respondent No. 1 has relied upon the case New India Assurance Company v. Kamala and Ors. reported in : [2001]2SCR797 , National Insurance Company Limited v. Swaran Singh and Ors. reported in : AIR2004SC1531 and New India Assurance Company Limited v. Satya Devi and Ors. reported in 2003 (Supp) JKJ 160. In all these cases it was held that the Insurance Company is liable to satisfy the amount of compensation to third party and can recover the same from the insured in case of breach of Insurance policy conditions.
8. The Insurance Company has its statutory liability under Section 149 of the Motor Vehicles Act 1988 to indemnify third party and thus the appellant-Insurance Company can not escape from its liability and is bound to discharge this liability by payment of compensation amount awarded by the Tribunal to the third party. This statutory liability has to be discharged irrespective of other factors. In latest judgment of Hon'ble Supreme Court of India entitled Prem Kumari and Ors. v. Prahlad Dev and Ors. reported in : AIR2008SC1073 wherein it was held that:
In order to avoid liability under Section 149(2)(a)(ii) it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured, the burden of proof being on the insurance company to establish the breach. When an owner after verification has satisfied himself that the driver has a valid licence and was driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the insurance company would not then be absolved of liability. Mere absence of, 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. Even in the case that the licence was fake, the insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the license was fake and still permitted him to drive. The concept of purposive interpretation has no application to cases relatable to Section 149 of the Act.
9. In the instant case there is no evidence on the record nor the appellant-Insurance Company has alleged anywhere that the owner of the vehicle, who is insured, has knowledge that the driver of the vehicle was not holding a valid driving license. In such circumstances, the appellant-Insurance Company is not absolved of its liability to satisfy the amount of compensation awarded by the learned Tribunal. However, the Insurance Company can recover this amount afterwards if it is found that the insured has violated the terms of the contract of insurance.
10. For the foregoing reasons, I would hold that there is no merit in this appeal which is required to be dismissed. Accordingly this appeal alongwith connected CMP is dismissed. The parties shall bear their own costs.