The liability of the insurer to pay compensation is upheld despite the driver's fake license, as the owner failed to prove non-willful violation of policy terms.

JUDGMENT :

Satyen Vaidya, J.

Both the appeals are being decided together as these arise out of the same award.

2. FAO No.66 of 2018 has been filed by the owner of the vehicle (insured) as the liability to pay compensation has been fastened upon him and FAO No.130 of 2018 is by insurer as learned Tribunal has directed the compensation to be paid by the insurer in the first instance and then to recover the same from the owner (insured).

3. On 26.02.2007 at about 12:15 PM an accident took place near place Malyana on Shimla by-pass road involving car No. HP-35-0333 and truck bearing registration No.HP-14A-1839. The car was being driven by Rajinder Singh Bodh and the truck by Het Ram (hereinafter referred to as “driver”). Rajinder Singh Bodh (hereafter referred to as deceased) succumbed to injuries suffered in the accident. His legal representatives i.e. the mother Smt. Kaushalya Devi, wife Smt. Urmila Bodh and minor son Master Shreshth (hereinafter referred to as “claimants”) filed MAC Petition No.37 of 2007 under Section 166 of Motor Vehicles Act before the Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahar (for short, “the Tribunal”). The cause of accident was allegedly attributed to rash and negligent driving of the driver of the truck.

4. The truck No. HP-14A-1839 was owned by Shri Parveen Dhiman, who is appellant in FAO No.66 of 2018 (hereinafter referred to as “Owner”).

5. The notice in the claim petition could not be served upon the driver and for such reason his name was ordered to be deleted from array of respondents vide order dated 25.06.2010.

6. The owner filed his reply. The contents of claim petition were denied in generality. He disclosed that there was a contract of insurance between him and the Oriental Insurance Company Limited (hereinafter referred to as “insurer”) in respect of truck number HP-14A-1839. The allegations of rash and negligent driving against driver of the truck were denied and as a counter it was alleged that the accident had taken place on account of rash and negligent driving of the deceased.

7. The insurer filed separate reply. The owner was blamed with violation of terms and conditions of the policy of insurance. It was specifically contended that the driver did not possess valid and effective driving license at the time of accident.

8. The National Insurance Company Limited was also impleaded as one of the respondents being the insurer of car No. HP-35-0333. The said respondent also filed its separate reply, however, its contents need not be noticed here keeping in view the issues involved in these appeals.

9. Learned Tribunal framed the following issues:

“1. Whether the deceased Rajinder Singh Bodh died on 26-2-2007 due to rash and negligent driving of driver of vehicle No. HP-14A-1839 near Malyana at Bye Pass road Dhalli Shimla, as alleged? OPP.

2. Whether the petitioners are entitled for compensation, if so to what amount and from whom? OPP.

3. Whether the petition is not maintainable on behalf of petitioners as they are not the legal heirs of the deceased Rajinder? OPR-1.

4. Whether respondent No.3 is not liable to indemnify insured as there is violation of the terms and conditions of the insurance policy? OPR-3.

5. Whether the petition is not maintainable as the driver of the vehicle bearing No. HP-14A-1839 (truck) was not possessing a valid and effective driving licence at the time of accident? OPR-3.

6. Whether the accident had taken place due to rash and negligent driving of the deceased and the petitioners are not entitled for compensation? OPR-3.

7. Whether the petition is not maintainable against respondent No.3 as the deceased cannot be regarded as third party? OPR-3.

8. Whether the petition does not disclose any cause of action against the respondents? OPR-3.

9. Whether the deceased/insured had violated the mandatory terms and conditions of the insurance policy and respondent No. 4 is not liable to pay compensation to the L.Rs of deceased/insured? OPR-4.

10. Whether the petition is not main