JUDGMENT
N.K. Jain, J.
1. The claimants-appellants have filed this appeal under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 6th July, 2000 passed by the Motor Accident Claims Tribunal, Jaipur in MAC No. 556/95 for passing award against the Insurance Company also.
2. The claimants-appellants filed an application for compensation under Section 166 of the Motor Vehicle Act, 1988 in respect of death of late Shri Rameshwar Lal who died in an accident which took place on 18.11.94 arising out of use of motor vehicle. The learned Tribunal vide impugned judgment dated 6th July, 2000 passed an award of Rs. 4,15,000/-. Rs. 50,000/- was ordered to be adjusted which were paid as interim award and remaining amount of Rs. 3,65,000/- was directed to be paid along-with interest @ 12% per annum from the date of claim application i.e. 22.3.95 till the date of payment. However, the award was passed only against the owner and driver of the vehicle in view of the finding of Issue No. 3 wherein the Tribunal recorded a finding that driver was not holding a valid and effective driving licence. The Tribunal recorded a finding that driving licence produced in the case was fake licence, therefore, Insurance Company cannot be made liable as there is breach of terms and conditions of insurance policy.
3. The learned Counsel for the appellant submits that the Insurance Company did not raise any specific plea in their reply to the claim petition before the Tribunal that owner of the vehicle was having the knowledge about the fake licence of the driver. He further submits that in absence of specific knowledge of the owner that the driving licence of the driver is fake, the Insurance Company should not have been exonerated from the liability to make the payment of amount of compensation. He has referred to the judgment of Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. .
4. The learned Counsel for respondent No. 1 Insurance Company does not dispute the principles of law enumerated in the judgment of the Hon’ble Supreme Court as referred above but his request is that a right may be given to the Insurance Company to recover the said amount from the owner of the vehicle as violation of terms and conditions of the insurance policy was in the knowledge of the owner of the vehicle.
5. I have considered the rival submissions of the parties and examined the impugned judgment and order of the Tribunal.
6. The Insurance Company filed its reply before the Tribunal on 24th June, 1996 which clearly shows that no specific plea was taken by the Insurance Company to the effect that driving licence of the driver was fake and this fact was in the knowledge of the owner of the vehicle. Although two witnesses have been examined on behalf of the Insurance Company but both the witnesses NAW-1 Jangidas and NAW-2 Rajeshwar Nath Tiwari have not stated that it was not in the knowledge of the owner of the vehicle that driving licence of the driver is fake. There is no dispute between both the parties that the deceased was third party in the case and Insurance Company is liable to indemnify the liability of the owner even if there is breach of terms and conditions of the insurance policy.
7. In National Insurance Co. v. Swaran Singh supra, the Hon’ble Supreme Court has held as under :-
“(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section 2 a ii of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver a fake one or otherwise, does not fulfill the requirements of law or not will have to be determined in each case.”
8. The learned Counsel for the Insurance Company does not dispute that the vehicle In dispute was Insured with the Insurance Company on the date of the accident. So far as the violation of the terms and conditions of the insurance policy is concerned there is no material on record to say that violation of the terms and conditions of the insurance policy was In the knowledge of the owner of the vehicle. In these circumstances the Insurance Company could not have been exonerated In the present case by the Tribunal to indemnify the liability of the insured. The present case is fully covered by the judgment of the Hon’ble Supreme Court in the case of National Insurance Co. v. Swaran Singh supra.
9. The appeal is accordingly allowed. The impugned judgment/award dated 6th July, 2000 is modified to the extent that remaining amount of compensation of Rs. 3,65,000/- with interest will be paid by non-applicant No. 1 to 3 including Insurance Company. The rate of interest will be 12% from the date of filing of the application i.e., 22.3.95 till the date of impugned award i.e., 6.7.2000. However, the rate of interest will be 9% from 7th July, 2000 till the date of deposit of the amount by the Insurance Company in the Tribunal. The counsel for Insurance Company wants two months time to deposit the amount. The time prayed for is allowed. The Tribunal is directed to deposit Rs. 3 lacs in the name of Smt. Lali Devi wife of deceased Rameshwar and Rs. 1 lac in the joint name of appellants Nos. 2 and 3 namely Jangi Das and Smt. Kamali Devi parents of the deceased in the Monthly Income Scheme of the Post Office for a period of 6 years. The remaining amount will be deposited in the Fixed Deposit in the Post Office for a period of 6 years in the joint name of appellants Nos. 1 and 4 to 7 namely, Smt. Lali Devi, Jaswant, Ganesh, Pawan and Ganga. The claimants-appellants will be allowed the monthly/quarterly interest on MIS/FDR and full amount on the date of maturity of the MIS/FDR. No order as to costs.