The Insurance Company is liable to pay compensation first and can recover from the vehicle owner if there is a policy breach due to the driver's lack of a valid license.

JUDGMENT :

Ashok S. Kinagi, J.

This Appeal is filed under Section 173(1) of the MOTOR VEHICLES ACT , 1988 (hereinafter referred to as ‘M.V.Act,’ for short) by the Insurance Company, challenging the judgment and award dated 10.06.2014 passed in MVC No.91/2011 by the learned Senior Civil Judge & IT Court & AMACT, Byadgi.

2. Brief facts leading rise to the filing of this appeal, are as follows:

3. On 30.08.2010, at about 10.30 a.m. one Bharamappa was a pedestrian on the left side of the P.B. Road. At that time, the lorry bearing Reg.No.KA-27/5949, driven by its driver in a rash and negligent manner, dashed to Bharamappa. As a result, the Bharamappa sustained fatal injuries all over the body and died on the spot. Hence, the petitioners, are the legal representatives of the deceased Bharamappa, filed a claim petition under Section 166 of the M.V.Act claiming compensation for the death of Bharamappa in a road traffic accident. Accordingly, prays to allow the claim petition.

4. A notice was issued to the owner of the offending vehicle. Despite the service of a notice, he remained unrepresented and was placed exparte.

5. The Insurance Company filed a statement of objections denying the averments made in the claim petition. It is contended that the driver of the offending vehicle did not possess a valid and effective driving license as of the date of the accident. It is contended that the owner of the offending vehicle has entrusted the offending vehicle to an unauthorized person, who did not possess a valid and effective driving License. Thus, there is a breach of the policy conditions. Hence, prays to dismiss the claim petition against the Insurance Company.

6. The Tribunal, based on the pleadings of the parties, framed the relevant issues.

7. The petitioners, to substantiate their case, petitioner No.2 was examined as P.W.1, and marked 5 documents as Exs.P1 to P5. Conversely, the official of the Insurance company was examined as R.W.1, and marked 1 document as Ex.R1.

8. The Tribunal, after assessing the verbal and documentary evidence, allowed the claim petition in part with costs vide judgment dated 10.06.2014, and awarded a compensation of Rs.9,44,000/- with interest at the rate of 6% p.a. from the date of the petition till the date of realization. It is held that the owner and insurance company are jointly and severally liable to pay the compensation amount, and directed the Insurance Company to deposit the compensation amount to the petitioners.

9. The Insurance Company, aggrieved by the judgment and award passed in MVC No.91/2011, filed this Miscellaneous First Appeal.

10. Heard the arguments of the learned counsel for the Insurance Company, and the learned counsel for the petitioners.

11. Learned counsel for the Insurance Company submits that the driver of the offending vehicle did not possess a valid and effective driving license as of the date of the accident. He submits that the owner of the offending vehicle had entrusted the offending vehicle to an unauthorized person. Thus, there is a breach of the policy conditions. The said aspect was not adequately considered by the Tribunal, and committed an error in fastening the liability jointly and severally. Hence, on these grounds, he prays to allow the appeal.

12. Per contra, the learned counsel for the petitioners submits that if this court comes to a conclusion that the driver of the offending vehicle did not possess a valid and effective driving licence, and there is a breach of policy conditions, this court may direct the Insurance Company to pay the compensation amount to the petitioners at the first instance and recover the same from the owner of the offending vehicle. To buttress his arguments, he placed reliance on the judgment of the Full Bench of this court in the case of NEW INDIA ASSURANCE COMPANY LTD BIJAPUR, BY ITS DIVISIONAL MANAGER VS YALLAVVA AND ANOTHER reported in 2020 (2) AKR 484

13. Perused the records and considered the submission of the learned counsel for the parti