The main legal point established in the judgment is that the insurance company is required to first pay the claimants of the victim and thereafter recover from the owner of the offending vehicle in question.

JUDGMENT :

Shekhar B. Saraf, J.:

1. This is an application arising out of an appeal against an award dated 22nd March, 2017 passed by the Learned Judge, Motor Accident Claims Tribunal, 3rd Court, Barasat, North 24 Parganas in MAC Case No. 308 of 2002 under Section 166 of the Motor Vehicles Act, 1988. By consent of parties the stay application and the appeal were taken up together for hearing. The appellant herein is the National Insurance Company, the insurer of the offending vehicle that resulted in the death of the husband of the petitioner/ respondent no. 1. The other claimants are the minor son and mother of the deceased.

2. The chronological events leading to this appeal are as follows:

a. On August 3, 2001, at around 6.30 a.m. in the morning the victim Tarun Acharya and his two companions namely, Sajal Das and Debu Singh were travelling in an ambassador car bearing No. WB – 02/1605 through Jessore Road from Habra to Dumdum Cantonment. While they were on the road a lorry bearing no. WB-25/0373 collided head on with the ambassador, as a result of which, the victim sustained fatal injuries all over his body. He was immediately taken to the Barasat District Hospital where he succumbed to his injuries.

b. In connection with the aforesaid accident a police case was registered vide Airport P.S. Case No. 107 dated August 3, 2001 under Section 297/304A of the Indian Penal Code against the driver of the offending vehicle.

c. The owner of the vehicle did not contest the case despite service of summons and accordingly the case proceeded exparte against him. The appellant herein, the opposite party no. 2 before the Trial Court, contested the case by filing written statement and by leading oral evidence.

d. The Tribunal after hearing all the parties allowed the claim of the claimants and granted an award of Rs. 15,93,500/- along with interest at the rate of six percent per annum from the date of filing of the claim application.

e. The insurance company thereafter has filed this appeal assailing the impugned judgment of the Tribunal.

3. Mr. Rajesh Singh, counsel on behalf of the appellant primarily put forth his submissions on the proposition that if the driver of the vehicle did not possess a valid driving licence the insurance company could not be made liable to pay the compensation/ damages. In support of his case, he relied on four Supreme Court judgments of Oriental Insurance Co. Ltd. –v- Syed Ibrahim and Others reported in 2007 (4) T.A.C. 385 (S.C.) [Coram: Dr. Arijit Pasayat and Lokeshwar Singh Panta, JJ.]; Sardari and Others –v- Sushil Kumar and Others reported in 2008 (2) T.A.C. 369 (S.C.) [Coram: S.B. Sinha and V.S. Sirpurkar, JJ.]; Ram Babu Tiwari –v- United India Insurance Co. Ltd. and Others reported in 2008 (3) T.A.C. 769 (S.C.) [Coram: S.B. Sinha and Cyriac Joseph, JJ.]; Prem Kumari and Others –v- Prahlad Dev and Others reported in 2008 (1) T.A.C. 803 (S.C.) [Coram: Dr. Arijit Pasayat and P. Sathasivam, JJ.] to urge that in cases where the driver is not having a valid licence, the same would amount to willful violation of the terms and conditions of the policy resulting in the insurance company being absolved of its liability to pay the victim.

4. Per contra, counsel for the petitioner submitted that the defence provided to the insurance company under Section 149(2) of the Motor Vehicles Act, 1988 does not absolve the insurance company from making the payment to the claimants. In fact, he submitted that the liability of the insurance company to pay the victim very much remains and the defences under Section 149(2) only allow the insurance company to seek the reimbursement of the amount paid to the victim from the owner of the offending vehicle. He relied on a judgment in National Insurance Co. Ltd. –v- Swaran Singh and Ors. reported in (2004) 3 SCC 297 [Coram: V. N. Khare, CJI, D. M. Dharmadhikari and S. B. Sinha, JJ.] to support his above submission. He further submitted that the Supreme Court in a very recent judgment in Shaman