JUDGMENT
Prakash Tatia, J.
1. Heard the learned Counsel for the appellant and respondents-claimants finally as a short law point is involved in this appeal.
2. The brief facts of the case are that a claim petition was filed by claimants due to the death of Buddharam in accident. The Tribunal while deciding issue No. 3 held that the appellant insurance company is not liable for the payment because of the fact that conditions of policy of the insurance was violated by the non-applicant No. 2, Mangla Ram, who was the holder of the policy, but at the same time, the Tribunal directed that the insurance company shall make the payment of the amount of the award and the appellant insurance company shall be entitled to recover this amount from the non-applicant No. 2, Mangla Ram. According to the learned Counsel for appellant, when the Tribunal held that insurance company is not liable for the payment and as there is a clear violation of the terms of the policy then the Tribunal has committed a serious illegality in directing the appellant company to make payment of the award amount to the claimants. The other part of the award is not under challenge.
3. According to learned Counsel for the appellant, the Hon’ble Supreme Court in several cases held that when a vehicle is handed over to a person, who is not having a valid licence and accident is caused due to rash and negligent driving by the above person then this is a breach of condition of policy and insurance company is not liable, for which learned Counsel for the appellant relied upon the judgment of the Hon’ble Supreme Court in the case of Kashiram Yadav v. Oriental Fire & Genl. Ins. Co. Ltd. 1989 ACJ 1078 (SC), another judgment in Sohan Lal Passi v. P. Sesh Reddy 1996 ACJ 1044 (SC) and one more judgment of the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC). In all these above three cases the Hon’ble Supreme Court held that when the driver was not holding a valid driving licence and owner has given the vehicle knowingly to the person who was not having a valid driving licence then this amounts to breach of condition of policy by the holder of the policy and, therefore, the insurance company is not liable for the payment of the award amount. Therefore, according to learned Counsel for the appellant in view of the above judgments of the Hon’ble Apex Court, the appellant company is not liable for the above amount and there is no provision of law in the Motor Vehicles Act, which authorises the Tribunal to direct insurance company to make the payment despite the fact that the insurance company is not liable to make the payment either under contract or by statutory provision. According to the learned Counsel for the appellant the liability can be fastened upon the insurance company only when it is recoverable in accordance with law from the appellant company and not otherwise.
4. Learned Counsel for the respondents submitted that the respondents-claimants are third party and lawful beneficiaries of the contract between the appellant insurance company and the owner of the vehicle. The respondent is not concerned with the minute inter se conditions of the insurance company. The respondents-claimants are having valuable right to enforce award against the insurance company, also as the Motor Vehicles Act provides the provision for recovery of the amount from the insurance company under the circumstances given in the Motor Vehicles Act. Therefore, if the Tribunal has passed the award in favour of claimants wherein the Tribunal directed appellant to make payment of the award amount to the claimants with liberty to the appellant to recover the amount from the owner of the vehicle then the Tribunal has not committed any illegality because here in this case there is an admitted case of contract between the insurance company and the owner of the vehicle. The breach, if there was any, was committed by the owner of the vehicle and for which the insurance company can recover the amount paid to the claimants but cannot deny the benefit to the claimants. Learned Counsel for the respondents relied upon the recent judgment of the Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC), wherein the Hon’ble Supreme Court directed the appellant insurance company to pay award amount to the claimants and also directed the Tribunal to decide the next question whether the insurance company is entitled to recover that amount from the owner of the vehicle on account of vehicle being driven by a person who did not have a valid licence to drive the vehicle.
5. In view of the recent judgment of the Hon’ble Apex Court relied upon by the learned Counsel for the respondents, I do not find any force in this appeal. It may also be relevant to mention here that learned Counsel for the appellant tried to submit that when the Tribunal itself held that the insurance company is not liable to make the payment and the Hon’ble Apex Court has also held that in case of breach of condition of the policy, the insurance company is not liable then the amount cannot be recovered from the appellant by the claimants. According to learned Counsel for the appellant when there is some liability of the insurance company then that may be a case where the amount can be recovered and when there is no liability at all of the insurance company then no amount can be recovered from the insurance company and the judgment of the Hon’ble Apex Court delivered in the case of New India Assurance Co. Ltd. v. Kamla (supra), will not have any application to the present case.
6. I considered this aspect of the matter also. The provision of law, as given in Sub-section (2) of Section 149 of the Motor Vehicles Act, provides that the insurance company shall not be liable in the eventualities mentioned in the various clauses of Sub-section (2) of Section 149 of the Motor Vehicles Act. The judgments relied upon by the learned Counsel for the appellant also clearly lays down that the insurance company is not liable for the amount, in case, there is a breach of condition of the policy. The question whether liability to make payment to the claimant still exists or not arises next after holding that insurance company is not liable was not under consideration before the Hon’ble Apex Court in the cases, relied upon by the learned Counsel for the appellant, therefore, those judgments have no application to the point in controversy which is here.
7. Whereas the case of New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC), was a case in which the fake licence was produced in support of plea that driver was holding the valid driving licence. The Hon’ble Apex Court held that even if a fake licence which was renewed, cannot transform a fake licence as genuine. Having fake licence and having no licence are one and the same therefore, also the controversy is covered by the judgment of the Hon’ble Apex Court relied upon by the learned Counsel for the respondents.
8. The learned Counsel for the appellant in alternative submitted that, when some liability of the insurance company is there then direction can be issued for payment of the total amount of the award even as per the judgment of the New India Assurance Co. Ltd. v. Kamla 2001 ACJ 843 (SC). Argument of learned Counsel for the appellant is devoid of force. When some liability of the insurance company is there then the insurance company cannot deny that limited liability. The question still remains what will happen of the amount for which insurance company is not held liable. Answer is that because of breach of condition by the driver or owner of the vehicle the benefit, which was otherwise available to the claimant cannot be denied. Interest of the insurance company is also protected by passing award in favour of the insurance company so that the insurance company can recover the amount from the owner of the vehicle.
9. Learned Counsel for the appellant further submitted that when there is clause of avoidance in the insurance policy or provision provided same effect as avoidance clause in the Act of 1988 are there then such direction of making payment by the insurance company can be passed. The avoidance clause only provides that in case the insurance company makes payment of the amount for which insurance company is not liable then insurance company can recover that amount from the insured. This is a recognition of a civil right of the insurance company by providing express provision either in insurance contract or in the Act, which is otherwise also available to a insurance company to recover the amount from insured for which the insurance company was not liable but had to pay the amount due to fault of the insured. Therefore, that interpretation put forward by the learned Counsel for the appellant is also devoid of any force.
10. In view of the above reasoning’s, I do not find any force in this appeal and the same is hereby dismissed.