The judgment reaffirmed the principle that the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured if the insurer proves that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive.

JUDGMENT

1. Challenge in this appeal is to a Judgment and Award passed by the Motor Accident Claims Tribunal, Mumbai in M.A.C.P No.964 of 2011 on 30th July, 2018, by which the respondent-claimant (for short 'claimant') has been awarded compensation of Rs.83,000/- on account of permanent partial disability sustained by her in a motor vehicle accident which took place on 3 rd August, 2010 on P.R. Road opposite Nityanand Hotel, Prarthana Samaj Junction, Girgaon, Mumbai.

2. Facts in brief are as follows;

On 3rd August, 2010, claimant was walking on P.R road when the offending tanker bearing registration No. MH-04-DS-86 while taking 'U' turn gave dash to the applicant resulting into injuries as described below;

(i) distal nervo vascular disorder and small hematoma anterior to vastus medial;

(ii) small heamotoma on the right knee;

(iii) destruction of power of her right knee joint to some extent;

She was rushed to Harkishandas Hospital. She was admitted in the hospital from 3rd August, 2010 to 11th August, 2010. The claimant had incurred medical expenses of Rs.90,000/-.

3. Driver of the offending tanker has been booked by D.B. Marg Police Station vide Crime No. 150 of 2010.

4. The claimant has contended that on account of accidental injuries, she is unable to perform her day-to-day work. The accidental injuries have resulted in causing unbearable pains. Expectation of her life has been shortened. She was advised to take complete rest and also further treatment. The claimant has, therefore, claimed compensation of Rs.3,00,000/- from the insurer and owner of the offending tanker.

5. The owner of the offending tanker has been absent despite service, hence proceeded ex-parte.

6. The appellant-insurer in the written statement denied all the averments made by the claimant in the claim petition. The main challenge in the written statement is that the Driver of the offending tanker possessed a fake driving licence and, therefore, the appellant cannot be held liable to indemnify the owner of the offending tanker as there is a breach of policy condition. Apart from that, it is the contention of the appellant that claim is bad for non joinder of Driver of the offending tanker as a party and secondly, it was a case of contributory negligence.

7. After recording the evidence of the applicant A.W.1-Kirati (claimant herself) at Exhibit 12,, A.W.-2 Jadhav (Employee of Sir Harkishandas Hospital) at Exhibit 24, A.W.3-Anant (Accountant of said Hospital) at Exhibit 29 and A.W.4 - Dr. Khanna at Exhibit 34, D.W.1-Ahire (Junicor Clerk of ARTO Andheri) at Exhibit 38 and D.W. 2 - Pallavi (Legal Manager of Insurer) at Exhibit 42 and after perusing the documentary evidence, learned Member, M.A.C.T has partly allowed the Petition and directed opposite party-M/s. Unique Constructions and Reliance General Insurance Co. Ltd to jointly and severally pay compensation of Rs.83,000/- with interest @ 7.5% per annum from the date of registration of the Petition till complete realization of the said amount.

8. I heard Ms. D. Shalini Shankar, learned Counsel for the appellant and Mr. T.J. Mendon, learned Counsel for the respondent No.1.

9. The learned Counsel for the appellant would argue that the learned Member of the Tribunal has failed to consider that the driving licence of the Driver of the offending tanker was in the name of someone else and, therefore, it is the case of fake driving licence and, therefore, Insurance Company cannot be held liable to indemnify the owner of the offending tanker. The learned Member of the Tribunal, at the most, could have directed the appellant to pay compensation and recover the same from the owner of the offending tanker. It is further contended that the disability certificate has not been issued by the treating Doctor but by another one who had no occasion to see nature of the injuries sustained by the claimant.

10. In support of her submission, Ms. Shalini Shankar has placed reliance on some of the authorities, which shall be referred to herei