The main legal point established is that the insurance company is liable to pay compensation for a motor vehicle accident claim for a hired driver, even if the accident is caused due to negligence, and has accepted additional premium to cover the liability of the paid employee.

JUDGMENT :

Heard learned counsel for the parties.

2. Present miscellaneous appeal has been preferred under section 173(1) of the Motor Vehicle Act on behalf of the Bajaj Allianz General Insurance Company Limited, assailing the impugned award dated 21.11.2017 passed in Motor Accident Claims Case No.70 of 2012 passed by learned District & Additional Sessions Judge-VI-cum-P.O., MACT, Gumla, whereby the claimants namely, (1) Binita Topno (2) Sunita Topno (3) Dashrath Topno (4) Suraj Topno (5) Mushkan Topno (6) Ghogeya Topno and (7) Muktak Topno (Appellant Nos.2-5 are minors being represented through respondent No.1 being their mother as their next friend) have been awarded compensation to the tune of Rs.6,08,540/-along with interest @ 6 % per annum from the date of admission of the claim petition i.e. 20.09.2014 till its realization. The interim compensation paid, if any, under section 140 of the Motor Vehicle Act, 1988 shall be deducted therefrom.

3. The case of the claimants in short is that one Prakash Topno aged about 35 years who was the only earning member of the claimant’s family met with an accident arising out of use of motor vehicle bearing temporary registration No.JH-01G(T)-4470/8930 and permanent registration No. JH-07D-3574 near village Bangru, P.S. Palkot Dist. Gumla at midnight on 25.12.2011 at NH-pitch road while driving the aforesaid bolero vehicle and died on spot. It is alleged that the deceased was employed by the owner of the above bolero vehicle namely Pushpa Tirkey and was earning Rs.6,000/-per month. The offending vehicle was insured with Bajaj Allianz General Insurance Company (O.P. No.2) on the relevant date of accident. The claimants have claimed compensation of Rs.6 lakhs with 9% interest, funeral cost and loss of consortium under section 166 of Motor Vehicle Act.

4. O.P. No.1 Pushpa Tirkey, the owner of the offending vehicle bearing temporary No. JH-01G(T)-4470/8930 and permanent registration No. JH-07D-3574 appeared and contested the case amongst others grounds that on the date and time of occurrence, the driver/deceased without permission of the owner went with the vehicle for his own work to visit his family/relative’s house for observing festival and due to unskilled driving, the accident took place. It is further pleaded that since the offending vehicle was insured with the O.P. No.2 under valid insurance policy effective from 14.10.2011 to 13.10.2012, the whole liability is upon the insurance company.

5. O.P. No.2 Bajaj Allianz General Insurance Company Limited/present appellant in its written statement has specifically pleaded that on the date of alleged accident the deceased was not holding a valid and effective driving license and he was also not qualified for obtaining such driving license and he was deliberately employed by the owner for plying the vehicle for carrying passengers also. Hence, there is clear cut violation of terms and conditions of insurance policy and the company is not liable to indemnify the insured and pay any compensation amount to the claimants. Moreover, the deceased driver can not be treated as third party rather he is agent of the owner/insured on this ground also insurance company is not liable to pay the compensation to the claimants. It is also pointed out that the offending vehicle was being plied without permanent registration.

6. On the basis of the parties, the learned Tribunal has settled following issues for adjudication:

(1) Whether the deceased Prakash Topno(35 years) died while driving the impugned Bolero vehicle bearing Engine No.GHB4H21866, Chassis No. MA1XA2GHKB5J94126 Registration No.JH-01G(T)-4470 on the alleged date of accident 25-12-2011?

(2) Whether the driver Prakash Topno died in the aforesaid accident due to unauthorized or rash, negligent and drunken driving of the vehicle or due to his own negligence?

(3) Whether the driving License of deceased was fake and if so, is the same a valid defence for insurance company?

(4) Whether third party includes the