Insurance companies cannot evade liability if the insured driver acted to avoid an accident and had a valid license, regardless of policy limitations.

JUDGMENT :

1. The appellant/insurance company, who is original respondent No.2 in MACP No.32 of 2007, has challenged the judgment and award dated 01/09/2008 in the aforesaid claim petition passed by the learned Member Motor Accident Claim Tribunal, Akola (hereafter referred to as ‘the learned tribunal’). Under the impugned judgment and award, the learned tribunal has granted compensation of Rs.3,95,000/- inclusive of NFL amount to the present respondent / claimants Nos.1 to 6 alongwith interest @ Rs.9% from the date of petition till its realization. The learned tribunal has held the present appellant /insurance company as well as original respondent No.1 Sk. Jauddin Sk. Chand i.e. owner of offending tractor and trolley, being liable to pay compensation to the claimants under joint and several liability.

2. Admittedly, the offending tractor and trolley involved in the accident, was owned by respondent No.7 Sk. Jauddin Sk. Chand and it was insured with the appellant / insurance company on the date of accident. Further, the appellant / insurance company has not challenged the quantum of compensation. Further, as per the case of the claimants, deceased Sunil Dongre was under employment of respondent No.7 and while driving the said tractor and trolley loaded with sand, deceased in attempt to save one boy coming from opposite direction on bicycle, took the said tractor at one side of the road, lost his balance and fell down and came under the wheel of tractor and died.

3. The appellant / insurance company has challenged the impugned judgment and award only on following three grounds:

i) Deceased himself was negligent

ii) deceased was not covered under the policy of tractor and trolley and it was only for covering risk of third party and

iii) deceased was not having a valid driving license at the time fo accident and therefore, the appellant / insurance company is not liable for payment of compensation.

4. The learned counsel for the appellant / insurance company by raising aforesaid three grounds vehemently argued that the accident had caused due to own negligence of deceased and therefore, he being not third party, was not at all covered under the policy Exhibit-41. He also contended that deceased was not having any valid driving license. Thus, he claimed exoneration of the appellant / insurance company from liability of paying compensation. He also relied on following judgments:

A) Surender Kumar Arora and another vs. Dr. Manoj Bisla and others, 2012 STPL (Web) 202 (SC)

B) New India Assurance Co.Ltd vs. Sadanand Mukhi and Others, AIR 2009 SC 1788

C) Judgment of this Court in First Appeal No.191 of 2017,Mrs. Safiakhatoon Kamal Ahmed Khan and others vs. Mr. Farooq Merchand and another, decided on 28/06/2022.

5. On the other hand, the learned counsel for the respondents / claimants supported the impugned judgment. He pointed out that the appellant / insurance company did not produce the terms and conditions of the policy and therefore, it could not establish that the said policy covered only risk of third party. As such, he prayed for dismissal of the appeal.

6. Heard rival submissions. Also perused documents, record and proceedings and impugned judgment alongwith the judgments relied upon by the learned counsel for the appellant.

7. The grounds on which the appeal is filed, are already mentioned above. So far as first ground is concerned, the appellant / insurance company is claiming that deceased himself was driving the tractor in rash and negligent manner and therefore, for his own negligence he cannot claim compensation either from owner and appellant / insurance company of the tractor and trolley. For that purpose he has relied upon the judgments as mentioned above. On going through those judgments, it appears that the principle underlined for exonerating the insurance company from the liability of paying compensation is that the deceased, who was rider