The insurance company cannot absolve itself from liability unless the insured is proven to be negligent in fulfilling the policy condition regarding the use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

ORDER

Alka Sarin, J. - The present appeal has been filed by the insurance company challenging the award dated 07.05.1996 passed by the Motor Accident Claims Tribunal, Gurgaon (for short, the 'Tribunal') on the ground that recovery rights have not been given to it. The claimant-respondent Nos. 1 to 5 have filed cross-objections seeking further enhancement of the amount of compensation awarded. Present respondent No.6 was the driver of the offending vehicle, present respondent No.7 had taken the offending vehicle on superdari while present respondent No.8 was the owner of the offending vehicle.

2. The facts in brief are that on 15.05.1993 deceased Jalaluddin was going from village Luhinga Kalan to village Bisru on a motorcycle. His younger brother, Mohd. Ali, was riding pillion. At about 6.00 pm when they reached near village Tundalka, a Maruti van, being driven rashly and negligently, came from the opposite side and struck against the motorcycle leading to the death of Jalaluddin. In the claim petition filed by the wife and children of Jalaluddin it was claimed that the Maruti van had a number plate of DL-3CA-0467 whereas it's actual number was DL-3CA-4673. The claim petition was contested by the respondents. On the basis of the pleadings of the parties and the evidence on the record, the Tribunal held that the accident took place due to the rash and negligent driving by the present respondent No.6. The Tribunal also held that the claimants were entitled to claim compensation from the driver (present respondent No.6), owner (present respondent No. 8) and the insurance company (present appellant). The Tribunal awarded compensation of Rs.1,54,000/- to the claimants against the driver (present respondent No.6), owner (present respondent No.8) and the insurance company (present appellant), who were held to be liable jointly and severally, along with interest @ 12% from the date of the petition till the date of realization.

3. Learned counsel for the appellant-Insurance Company would contend that the Tribunal while awarding the compensation has not given recovery rights to the appellant-insurance company. According to the counsel the driver of the offending vehicle did not hold a valid driving licence and therefore the appellant-insurance company ought to have been given recovery rights. He drew the attention of the Court to the testimonies of RW2 Kusum Lata and RW3 Madan Solanki and placed reliance upon the decision by the Supreme Court in Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan & Ors. [1987(2) SCC 654] and Pappu & Ors. vs. Vinod Kumar Lamba & Anr. [2018(3) SCC 208].

4. The driver and owner of the offending vehicle i.e. present respondent Nos.6 and 8 respectively have not contested this appeal and nobody has put in appearance on their behalf. The claimant-respondent Nos.1 to 5 have filed cross-objections seeking further enhancement of the amount of compensation awarded. According to their counsel, the Tribunal did not award future prospects and also did not award amounts under the conventional heads as per the law laid down by the Supreme Court in Smt. Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009(6) SCC 121]; National Insurance Co. Ltd. Vs. Pranay Sethi & Ors. [2017(16) SCC 680] and Magma General Insurance Co. Ltd Vs. Nanu Ram alias Chuhru Ram & Ors. [2018(18) SCC 130].

5. I have heard the learned counsel for the parties.

6. In the case of Skandia Insurance (supra) it was contended on behalf of the insurance company that since there was an exclusion clause, the insurance company would not be liable in case at the point of time when the accident occurred the person who had been driving the vehicle was not a duly licensed person to drive the vehicle and that once it was established that the accident occurred when an unlicensed person was at the wheels the insurance company would be exonerated from the liability. The Supreme Court held that in such circumstances the insurer will have to establish that the in