JUDGMENT
B.L. Bhat, J.
1. Considered. Admit.
This appeal is taken up for final hearing with the consent of the learned counsel for the appellant.
2. This appeal is directed against the award dated 12.12.2002 passed by the Motor Accident Claims Tribunal, Jammu in File No. 603/Claims titled as Narayan Dutt Sharma v. Kewal Cargo Carrier (P) Ltd. and Ors. whereby an award of Rs. 6,63,718 together with interest at the rate of 9% from the date of filing of the claim petition has been passed.
3. The facts relating to this appeal in nutshell are that on 10.10.1999 claimant Narayan Dutt Sharma was travelling by scooter which was hit by rashly and negligently driven Truck No. PB02E 9955 by respondent 3 at Indira Chowk, Jammu, as a result of which he sustained multiple injuries. He was admitted in Government Medical College Hospital, Jammu, where his left leg was amputated above knee. It is claimed that monthly income of the injured Narayan Dutt was about Rs. 5000 but because of disability which has been assessed by the medical witness at 85% and permanent in nature, he is unable to earn anything. This petition came to be resisted before the tribunal below by the appellant inter-alia on the ground that the terms of the insurance policy have been violated. The Respondents 2 and 3 choose to remain absent, as a result of which they were proceeded ex-parte. The parties went to trial with the following issues:
“1. Whether the accident involving injuries to the claimant Narayan Dutt Sharma occurred due to rash and negligent driving by the driver of the offending vehicle bearing Registration No. PB02E 9955(truck) on 10.10.1999?OPP
2. In case issue No. 1 is proved, what compensation the claimant is entitled to? OPP
3. Whether the terms and conditions of the policy of insurance have been violated, and, therefore, the respondent No. 3 is not liable to indemnify the owner?OPR 3
4. Relief.”
4. In order to prove these issues, claimant, respondent 1 examined Sanjeev Sharma, Dr. Raman K. Gautam, Charan Dass and Sanjay Kumar. In rebuttal, appellant-insurance company examined Ram Lahya. The tribunal below on conclusion of the proceedings of the case, came to award Rs. 6,63,718 together with interest at the rate of 9% per annum except on the amount of Rs. 3,60,000 payable by respondent-insurance company, which has been awarded to him under the head ‘future loss of income, and also with the condition that interim award if any, received by the claimant, shall stand deducted from the said awarded amount.
5. Heard Mr. Kamal Gupta, learned counsel appearing for the appellant.
6. The only argument made by Mr. Kamal Gupta is that driver of the offending vehicle was not holding effective and valid driving licence on the date of accident as a result of which, the owner of the offending vehicle has committed breach of the insurance policy, therefore, the insurance company cannot be said to pay compensation to the claimant.
7. Admittedly, the claimant is a third party. It is admitted that the offending vehicle was insured with the appellant insurance company on the date of accident, as a result of which the appellant/insurance company under the statute is liable to pay the compensation to the said claimant. In this behalf reference is made to a case titled as New India Assurance Company, Shimla v. Kamla, AIR 2001 SC 1419 in which their Lordships of the Apex Court in para 25 of the judgment have held:
“The position can be summed up thus: The insurer and insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties. If there was any breach of policy conditions on account of the vehicle being driven without a valid licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to insured to raise it before the Claims Tribunal. In the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimants-third parties) from the insured person.”
8. In view of the aforesaid law laid down by the Apex Court, the claimant-respondent being not the owner of the offending vehicle, being a third party, is entitled to claim the awarded amount by the Tribunal below from the appellant-Insurance Company, as a result of which, the appeal in hand in not sustainable against the respondent-claimant.
9. This takes me to consider that in view of the judgment of the Apex Court mentioned supra as to whether the Insurance Company is entitled to recover the awarded amount from the insured. In this behalf, it is pointed out that the Insurance Company has admitted that the offending vehicle was insured with it on the date of accident but as pleaded that since respondent-driver employed by the insured to drive the insured vehicle was not having effective and valid driving licence, as a result of which the insured has committed breach of insurance policy. In this behalf, the Tribunal below has framed Issue No. 3 leaving it to the appellant/respondent to prove it, but, as indicated solitary witness Ram Lahya has been examined by the insurance company in this behalf, who has deposed that he has conducted investigation of FIR No. 201/99. During the investigation, he found that the driving licence issued in favour of the respondent-Kashmir Singh, was Valid upto 31.8.2001. The Insurance Company has taken no steps to corroborate the evidence of this witness before the tribunal with the request to direct the driver-respondent to produce his original driving licence or that it should be permitted to lead secondary evidence to prove that on the date of accident, the driver was not in possession of effective and valid driving licence. There is nothing in the evidence of Ram Lahya that the driving licence of the respondent-driver was not valid and effective on the date of accident. This being so, the appellant-Insurance Company has failed to prove this issue before the Tribunal below. Therefore, the appellant-Insurance Company has failed to prove breach of contract of insurance clause by the insured respondent-owner by engaging respondent-driver who was not holding effective and valid driving licence on the date of accident.
10. Viewed thus, the appeal is not sustainable, which is accordingly dismissed.