Insurance companies cannot avoid liability for claims simply due to policy breaches relating to driver qualifications unless they prove negligence by the insured.

JUDGMENT :

H.P. SANDESH, J.

These two appeals are filed by the insurance company as well as the claimant as against the liability as well as the quantum against the judgment and award passed by the Tribunal in MVC No.946/2020.

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2. The factual matrix of the case is that the claimant before the trial Court while seeking relief of compensation invoking Section 166 of M.V.Act, contended that an accident was taken place on 24.08.2020 at 2.00 p.m. on account of death of one Sri. Shrishail S/o Late Mallinath @ Mallikarjuna. It is the case of petitioners that the son of the claimant had been to Kalaburagi on his motorcycle and while returning to his village met with an accident and Tipper bearing No.AP-15-TB-4656 which came from the opposite direction and dashed against him, as a result he succumbed to the injuries. It is a claim of the claimant that deceased was hail and healthy prior to the accident and he was earning Rs.25,000/- per month by doing Mason work. Hence made the claim for total compensation of Rs.47,86,000/-.

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3. In response to the claim petition, respondent No.1 appeared through an advocate, but has not filed objections. But insurance company filed the objection and took the contention that, driver of the Tipper was not having valid driving license and there is a breach of policy conditions. The claimant examined before the Tribunal as PW1 and also got marked Exs.P1 to P10. Respondent No.2 has examined one witness as RW1 and produced Exs.R1 to R3 and also examined one more witness as RW2 and got marked the document as Ex.R4. The Tribunal having considered both oral and documentary evidence assessed compensation of Rs.22,62,400/- by considering the income at Rs.14,250/- and added future prospects by relying upon the judgments of Sarala Varma and others V/s Delhi Transport Corporation and others , 2009 ACJ 1298 and also the National Insurance Company Limited v. Pranay Sethi and others , AIR 2017 SC 5157 and regarding liability while answering the point for consideration, come to the conclusion that the driver of the Tipper was having only the LMV and also the 2 wheeler license, but not having the driving license to drive a Tipper. However, the Tribunal having considered the judgment of Full Bench of this Court in the case of New India Assurance Company Limited V/s Yallawwa , 2020 ACJ-2560 as well as the judgment of Hon’ble Apex Court in the case of Pappu and Ors. vs. Vinod Kumar Lamba and Anr. , 2018 (3) SCC 308 comes to the conclusion that deceased was a 3^rd party and even there is no license for offending vehicle to drive. Insurance company can be directed to pay first and then recover the same and fasten liability on respondent No.1 and liberty was given to recover the same from the insured.

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4. Being aggrieved by the judgment and award, the insurance company mainly contended in the appeal that the income was taken is on higher side and apart from that, liability ought not to have fixed on the insurance company since there is a clear violation of policy conditions and there is a breach of conditions. Hence ought not to have fasten the liability even for pay and recovery and hence, it requires interference.

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5. Per contra, the learned counsel appearing for the respondents/claimants would contend that compensation awarded by the Tribunal is very meager since he was aged about 21 years as on the date of death and he was earning Rs.25,000/- per month but Tribunal committed an error in taking the income at Rs.14,500/- and hence, it requires interference.

6. Having heard the appellant and respective counsel and also on consideration of material on record, the points that would arise for consideration of this Court are:

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