JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. J. Ahmed, learned counsel for the appellant. Also heard Ms. M. Choudhury, learned counsel for the respondent/Insurance Company.

2. The present appeal under Section 173 of the Motor Vehicles Act, 1988 is preferred against the Judgment and Award dated 26.09.2017, passed by the learned Court of Additional District Judge No. 2, Kamrup (Metro) at Guwahati in MAC Case No. 497/2015 wherein the owner and the driver of the offending vehicle have been directed to pay compensation of Rs. 9,60,000/- along with interest @ 9% per annum from the date of filing of the claim petition till realization.

3. The claimant is aggrieved by the aforesaid judgment only on the ground that the learned Court below ought to have directed the insurance company to pay the amount so awarded and to recover the same from the owner and the driver of the offending vehicle inasmuch as there were no dispute that the vehicle was having valid insurance policy covering third party risk on the date of accident.

4. The insurance company has not assailed such judgment for obvious reasons. Thus, there is no dispute as regards the entitlement of compensation as claimed by the claimant and determined by the learned Court below. Therefore, the only determination that is to be made in the present case is whether the learned Court below has committed any error by not following the principles of pay and recovery in the given facts of the present case.

5. Though the other facts and evidences except the validity of the driving license of the driver of the offending vehicle is not necessary, however, the brief facts as projected by the claimants are described herein-below:

(I) The claim petition was filed by the wife and daughters of the deceased. The claimant’s case is that on the fateful day i.e. on 26.12.2014, when the deceased was returning home from Jalukbari, the driver of the offending vehicle bearing registration number AS-01-BF-4246 driving in a rash and negligent manner knocked down the deceased at Adabari, Katiya Dalang near Jalukbari resulting in grievous injuries to the person of the deceased. Though, the injured was immediately taken to Mahendra Mohan Choudhury Hospital, Panbazar, Guwahati however, he succumbed to his injury after a few hours.

(II) The Insurance Company took a specific plea that insurance company cannot be held liable as the driver of the offending vehicle was not having any valid driving license to drive the vehicle. The driving license which was exhibited to prove that driver was holding a driving license, was negated by the learned Court below in view of the evidence laid by the insurance company through DW-1.

(III) The DW-1 was a person from the licensing authority and the said DW-1 proved that the driving license seized by the Police and projected to be the license of the driver of the offending vehicle, was issued in the name of one Phukan Chandra Barman and not in the name of the driver of the offending vehicle and the said license was seized by the police and exhibited by the claimant was also having a validity from 12.05.2014 to 11.05.2009. Therefore, it was also a contention that the said driving license even was not valid on the date of accident. The evidence of DW-1 remained unshaken.

(IV) In view of the aforesaid evidence and material available on record, the learned Court below came to a conclusion that the driver of the offending vehicle was not authorized under law to drive any motor vehicle on the date of accident and therefore, the owner of the offending vehicle had clearly breached the condition of the policy of insurance as well as provision of Section 149 (2) of the Motor Vehicles Act, 1988. Accordingly, the learned Court below held that though the offending vehicle was duly insured with the insurance company, for breach of condition of the insurance and the provision of Section 149(2) M.V. Act, 1988, the driver and owner are jointly and severely liable to pay the compensation to the claimants