ORDER
1. In so far as the issue relating to enhancement of the compensation amount is concerned, the appeal is admitted to hearing. It shall be heard.
2. In so far as the issue relating to the liability to pay the amount of compensation already awarded, the Tribunal in the judgment/award under challenge in this appeal has fastened the entire liability to pay the awarded amount upon the owner of the vehicle (being respondent No. 1 in this appeal) and has absolved the insurer (being respondent No. 3 in this appeal) of any such liability on the ground that the driver driving the vehicle at the relevant time did not possess any valid license and by relying upon Section 149 of the Motor Vehicles Act, 1988, the insurer was permitted by the Tribunal to avoid its liability to make entire payment.
3. Our attention has been drawn to a judgment of the Supreme Court in the case of New India Assurance Co. Ltd. v. Kamla and Ors., reported in 2001 ACJ 843, wherein their Lordships, while referring to Section 149 of the Motor Vehicles Act, 1988, more particularly sub-section (4) and proviso thereof, have clearly held that even if an insurer is able to establish that it can avoid its liability to pay compensation on the ground of breach of any policy condition, including the condition relating to the fact that the driving license was invalid, the insurer is still liable to pay to the third party (claimant) and it may take steps to recover the amount so paid from the insurer.
4. In that view of the matter, therefore, after hearing detailed arguments of the learned counsel for the parties with respect to the aforesaid issue, we have no hesitation in holding at this very stage that the Tribunal was wrong in fastening the liability to pay the Award amount upon the owner and that in view of the aforesaid Supreme Court judgment insurer should pay the awarded amount to the appellant-claimant. It is, however, open to the insurer to take steps for recovery of the said amount from the insurer. For doing so undoubtedly, the insurer may rely upon the aforesaid Supreme Court judgment and may also invoke the relevant provisions of the Motor Vehicles Act, 1988 as are applicable in this case. It shall be open to the insured as well to defend the aforesaid claim of the insurer.
5. We accordingly, direct that within four weeks from today the respondent No. 3 shall pay to the appellant the awarded amount by handing over an account payee cheque favouring the appellant either personally to her or through her counsel or by depositing the same in this Court.
6. The appeal, shall be set down for hearing in February, 2003.