The main legal point established in the judgment is that the Insurance Company can be directed to satisfy the award with liberty to recover the same from the owner of the offending vehicle in accordance with law.

JUDGMENT :

1. This appeal is directed against award dated 9th July, 2009 passed by the Presiding Officer, Motor Accident Claims Tribunal, Jammu (hereinafter to be referred as the Tribunal), whereby the owner, respondent No. 1 herein, has been directed to pay the compensation of Rs. 4,96,000/-to the appellant along with interest @ 7.5% from the date of filing of the claim petition till its realization.

2. The award has been impugned by the appellant on the ground that the learned Tribunal has ignored the material evidence on record regarding income of the appellant and further that the learned Tribunal has not appreciated that absence of licence in not a defence available to the insurer against the third party.

3. Mr. Anil Gupta, learned counsel for the appellant during the course of arguments confined his submissions only to the extent that the award was required to be passed against the respondent-Insurance Company with a liberty to recover the same from the owner-respondent No. 1.

4. Mr. D.S. Chauhan, learned counsel for the respondent-Insurance Company submitted that as the vehicle in question was being plied in violation of the terms and conditions of policy of insurance, so the Insurance Company cannot be saddled with any liability to satisfy the award.

5. Heard and perused the record.

6. The issue No. 3 is reproduced as under:

"Whether the driver of the offending vehicle at the time of accident was not holding a valid and effective driving / licence? OPR"

7. A perusal of the award would reveal that the respondent-Insurance Company has led the evidence that the driver of the offending vehicle was not having a licence at the time of accident and as such, the learned Tribunal decided issue No. 3 in favour of the respondent-Insurance Company and directed the respondent No. 1-owner to satisfy the award.

8. The only issue that is required to be considered is as to whether the Insurance Company can be directed to satisfy the award with liberty to recover the same from the owner, when the vehicle was being driven by a person without licence. The Hon'ble Apex Court was confronted with an almost identical situation in Pappu & Ors. v. Vinod Kumar Lamba & Ors., JKJ ONLINE 34848, where the owner of the offending vehicle could not prove that the vehicle was being driven by an authorized person and the award was passed against the owner and the Insurance Company was exonerated by the Tribunal. The said award was subsequently upheld by the High Court. It was held 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 (Respondent 1)? This issue has been answered in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297] In that case, it was contended by the insurance company that once the defence taken by the insurer is accepted by the Tribunal, it is bound to discharge the insurer and fix the liability only on the owner and/or the driver of the vehicle. However, this Court held that even if the insurer succeeds in establishing its defence, the Tribunal or the court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. The three-Judge Bench, after analysing the earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. In para 107, the Court then observed thus : (SCC p. 340)

"107. We may, however, hasten to add that the Tribunal and the /court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of