JUDGMENT
N.K. Mody, J.
1. Being aggrieved by the award dated 6.3.1999 passed by M.A.C.T., Shajapur in Claim Case No. 37 of 1997 whereby the claim petition filed by the appellant has been dismissed, the present appeal has been filed.
2. Short facts of the case are that, the respondent No. 1 was the owner of Tempo bearing registration No. MP 13-T 0461. On the relevant date, the offending Tempo was insured with respondent No. 3. The offending vehicle was stolen on 3.5.1995. F.I.R. was lodged by respondent No. 1 in the concerned police station. Thereafter an accident took place on 20.6.1995 by the offending vehicle which was being driven by deceased Rashid Khan, respondent No. 2. In the claim petition filed by appellant, learned Tribunal held that since the vehicle was stolen on 3.5.1995 and the accident has taken place on 20.6.1995, therefore, neither the owner of the vehicle nor the insurer is liable for payment of amount of compensation. In the claim petition filed by appellant, learned Tribunal has held that, it is clear that vehicle was stolen prior to the accident, therefore, respondent No. 1 was not liable for payment of amount of compensation because the vehicle was being driven by an unauthorised person. Hence the claim petition was dismissed.
3. Learned Counsel for respondent No. 3 submits that in the circumstances award could have been passed only against the person who was driving the vehicle. Since the name of Rashid Khan, respondent No. 2, has already been deleted, therefore no amount can be awarded as compensation and the appeal deserves to be dismissed.
4. Learned Counsel for the appellant submits that at the time of accident the owner of vehicle was respondent No. 1. Therefore, respondent Nos. 1 and 3 were equally liable for payment of compensation so far as third party is concerned. Reliance was placed in the matter of United India Insurance Co. Ltd. v. Lehru , wherein the Hon’ble Apex Court has observed in para 15 of the order as under:
Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief, there is an accident. The thief is caught and it is ascertained that he has no licence. Can the insurance company disown liability? The answer has to be an emphatic ‘No’. To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the legislature, in its wisdom, has made insurance, at least third party insurance, compulsory. The aim and purpose being that an insurance company would be available to pay. The business of the company is of insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer the loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases, viz., that in order to avoid liability 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.
5. The learned Counsel for the appellant further placed reliance on a decision in the matter of Nagindas v. Nasir Ali , wherein a Division Bench of this Court in para 12 of its order has observed that it is the vehicle that required to be insured and not the person or the owner of the vehicle and in such a situation, the insurance company cannot escape its liability.
6. Mr. S.V. Dandwate, learned Counsel for the respondent No. 3 submits that the insurer/insurance company cannot be held liable for the accident. For this contention, reliance was placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Sunita Rathi , wherein the point under consideration was that whether the insurance company is liable in case where accident took place at 2.20 p.m. and cover note contains an express mention of the effective date and time of commencement of insurance as 2.55 p.m. The Apex Court has held that the insurance company is not liable.
7. Learned Counsel for the respondent No. 3 submits that consent or permission of the owner of the insured was necessary. Since the vehicle was stolen on 3.5.1995 of which the F.I.R. was lodged by insured, therefore, for the accident which took place on 20.6.1995, i.e., after more than a month of the theft neither the insured nor the insurance company can be held responsible because the liability of the owner of the vehicle is vicarious in nature.
8. In the present case, on the strength of this, learned Counsel submits that since the offending vehicle was being driven by unauthorised person who has expired and who was having no valid authority on behalf of respondent No. 1, therefore, neither respondent No. 1 nor respondent No. 3 can be held responsible for payment of compensation. Learned Counsel for respondent No. 3 tries to distinguish the decision of Hon’ble Supreme Court in the matter of United India Insurance Co. Ltd. v. Lehru and submits that point involved before Hon’ble Apex Court was relating to fake driving licence and the example quoted b