Insurance companies must initially pay compensation even if the driver lacks a valid license, with the right to recover from the vehicle owner.

ORDER :

(J. C. DOSHI, J.)

1. Aggrieved and dissatisfied with the judgment and award dated 6.12.2012 passed by the Motor Accident Claims Tribunal, Surendranagar in M.A.C.P. No. 65 of 2008.

2. Learned advocate for the appellant would submit that the learned Tribunal has committed serious error in exonerating the insurance company on the ground that the driver of the jeep was not holding valid and effective licence on the date of accident. He would further submit that the learned Tribunal has failed to consider the ratio laid down by the Hon’ble Apex Court in case of National Insurance Co. Ltd. v. Swarn Singh and Ors., (2004) 3 SCC 297 , whereby the Hon’ble Apex Court has laid down guidelines. He has also cited the judgment in case of Pappu Versus Vinod Kumar Lamba reported in 2018 (3) SCC 208 to submit that the Hon’ble Apex Court again reiterated the principle laid down in case of Swarn Singh (supra) and submit that in case, if it is established that the driver of the offending vehicle was not holding valid and effective driving licence, it would be a case fit to pass the order of penalty. Upon such submission, he prays to allow this First Appeal.

3. On the other hand, learned advocate Mr. Alkesh Shah for respondent No.2 while supporting the impugned judgment and award, would submit to dismiss the appeal.

4. Having heard learned advocates for both the parties, what could be noticed that the learned Tribunal has exonerated the insurance company on the ground that the driver of the offending vehicle was not holding effective and valid licence to drive the offending vehicle and it is proved from the deposition of the driver at Exh.39. Para 12 of the impugned judgment and award is relevant, which reads as under:-

“12. So far as contention of not having driving licence by the opponent jeep driver raised by Mr.Bhadeliya, LA.,is concerned, the opponent No.1, who is the driver-cum- owner of the offending jeep is examined by opponent No.2 Insurance Co., vide Exh.39, wherein, the jeep driver has clearly stated the fact that at the time of accident, he was not having driving licence to drive the vehicle. Hence, the fact of not having driving licence by the opponent driver is not disputed. This Tribunal has minutely perused the judgments cited by learned advocates of the respective parties and from which, Mr.Bhadeliya, L.A.,appears right in submitting that in the present case, when it is proved by examining the opponent driver-cum-owner that he was not having licence at all to driver the vehicle, the Insurance Co., can not be held liable to pay the compensation. Though, Mr.Halani, L.A.,has relied upon the judgment of Swarna Singh's, considering the judgments cited by Mr.Bhadeliya, L.A., reported in 2008 ACJ 1307 SC (supra) and 2008 ACJ 2654 SC (supra) and 2011 ACJ 981 (supra), wherein, the Swarna Singh's case is referred. Further, cited cases by Mr.Bhadeliya, L.A., are squarely applicable in the present case, wherein, it is held by Hon'ble Apex Court that in such cases, the claimants are entitled to compensation from driver and owner of vehicle. For the reasons aforementioned, this Tribunal is left with no option, but to dismiss the claim against the opponent No.2-Insurance Co., which is accordingly.exonerated from the liability to compensate the applicants and the opponent No.1-the driver-cum- owner is held liable to pay the accrued amount of compensation.”

5. In case of Pappu (supra), in para 14, considering the judgment in case of Swarn Singh (supra), the Hon’ble Apex Court observed as under:-

“14. The next question is: whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle