Point of law : Liability of an insurer to reimburse the insured, as an owner of the vehicle not only depends upon the terms and conditions laid down in the contract of insurance but also the provisions of the Motor Vehicles Act, 1988 (the Act). The owner of vehicle is statutorily obligated to obtain an insurance for the vehicle to cover the third party risk. A distinction has to be borne in mind in regard to a claim made by the insured in respect of damage of his vehicle or filed by the owner or any passenger of the vehicle as contradistinguished from a claim made by a third party.

JUDGMENT :

1. This Court has already admitted the First Appeal vide order dated 27.10.2020. In the Civil Application for stay, this Court vide order dated 12.01.2021 granted conditional stay against execution of impugned judgment and award.

2. Ms Kirti S Pathak, learned Advocate for appellant-Insurance Company has stated that they have deposited Rs 7,86,665/- before the M.A.C. Tribunal, Surat and through the virtual hearing she had prayed for final hearing of the appeal, since the present case lies within the narrow compass, accordingly the matter is taken up for the final hearing.

3. Heard learned Advocate Ms Kirti S Pathak for the appellant and learned Advocate Mr Nishit A Bhalodi for respondent Nos. 1 to 4. Though served none appears for respondent Nos. 5 and 6.

4. Being aggrieved and dissatisfied by the judgment and award dated 11.03.2020 passed by the Motor Accident Claim Tribunal (Auxi.) Surat, in MACP No. 473 of 2011 the appellant-Insurance Company has preferred this First Appeal under Section 173 of the Motor Vehicles Act 1988 ( “the Act” for short).

5. The short question arises for consideration is whether the appellant- Insurance Company can be made liable to pay compensation to the claimants when the driver of offending vehicle was holding a ‘Fabricated License’ at the relevant time of accident?

6. It is the case of the claimants-respondent Nos. 1 to 4 herein that on unfortunate day i.e. on 20.5.2011 at around 11.45 P.M., when the deceased was resting at the place of incident, at that time, one Truck bearing registration No. GJ-5-AT- 2526 (“offending vehicle”), plied by opponent No.1- respondent No.5 herein motioned in reverse, without any care or caution and in most rash and negligent manner, and hit the deceased, because of which the deceased sustained severe fatal injuries, to which the deceased succumbed. The respondent Nos. 1 to 4- original claimants have preferred the Claim Petition under Section 166 of the Motor Vehicles Act, 1988, before the Motor Accidents Claims Tribunal, Surat claiming compensation of Rs. 9,00,000/-, from the opponents, on account of the death of deceased Rambadai Yadav due to fatal motor accident, ensuing from the rash and negligent act on the part of respondent No.5 herein. The learned Tribunal vide order dated 11.03.2020 was pleased to allow the claim petition of the claimants and ordered to recover a sum of Rs. 5,27,400/- (Five Lac Twenty Seven Thousand Four Hundred only) with cost and interest at the rate of 7.5% per annum, from the date of claim petition till its realization from the opponents, who are jointly and severally held liable to pay the same to the claimants.

7. Despite the service of summons, respondents No. 5 & 6-original opponent Nos. 1 and 2 did not appear before Tribunal. The appellant- Insurance company had resisted the claim petition whereby it was contended that the driver of vehicle insured with appellant was holding a fabricated license at the time of accident and thereby the driver and owner of the vehicle have committed breach of provisions of Motor Vehicles Act 1988.

8. It is contended on behalf of appellant-Insurance company that the learned Tribunal has materially erred in not properly appreciating the legal issue of ‘Fabricated Driving License’ raised by appellant during the rigmarole of the trial. The appellant has pointed out before the Tribunal that driver of insured vehicle was not holding valid and effective driving license and license on record is fake license as produced as Driving License No. 12590/07 R.T.O. Rachi vide Exhibit 55 as per which the license was lucidly found fake.

9. So far as efforts to prove their case of fake license before Tribunal learned Advocate Ms Pathak specifically pointed out that the appellant- Insurance Company had examined Assistant Manager Mr. Ankur Mistry of Bajaj Allianz General Insurance Company vide Exhibit 52, whereby the witness has deposed before the Tribunal that the driving license produced on the record is fabricated, h