Insurer's liability persists unless a breach of policy conditions is established; mere driving by an unlicensed driver does not absolve the insurer from payment obligations.

JUDGMENT

MEENAKSHI MADAN RAI,J. - The Learned Motor Accidents Claims Tribunal, East Sikkim, at Gangtok (for short, "Claims Tribunal"), vide the impugned Judgment, dtd. 5/8/2020, computed the total compensation payable to the Claimant as Rs.24,11,279.00(Rupees twenty four lakhs, eleven thousand, two hundred and seventy nine) only and ordered that the Insurer, OP No.1, pay the compensation amount to the Claimant, with interest @ 9% per annum, from the date of filing of the Claim Petition till full and final payment. It was further ordered that, OP No.1 was at liberty to recover the same from the OPs No.2, 3 and 4 in accordance with law.

2. The Appellant being aggrieved by the Judgment and Award supra, in MACT Case No.60 of 2017 (Santosh Chetry alias Santosh Chettri vs. The Branch Manager, National Insurance Company Ltd. and Others), dtd. 5/8/2020, is before this Court.

3. Before proceeding further with the matter, to bring clarity with regard to the parties, their order of appearance before the Claims Tribunal and before this Court are being delineated hereunder;

(i) Appellant, (owner of the vehicle) was OP No.2 before the Claims Tribunal.

(ii) Respondent No.1 (survivor of the accident) was Claimant before the Claims Tribunal.

(iii) Respondent No.2 (Insurer) was OP No.1 before the Claims Tribunal.

(iv) Respondent No.3, (authorized driver) and Respondent No.4, (unauthorized driver) were OP No.3 and OP No.4, respectively before the Claims Tribunal.

4. The parties shall be referred to in terms of their appearance before this Court.

5. Advancing her arguments, Learned Legal Aid Counsel for the Appellant, contended that, the Appellant had handed over the vehicle in accident, Chevrolet Spark (Taxi), bearing registration No.SK-01-T-2614, to Respondent No.3, the driver employed by him for the vehicle, who possessed a valid license and was the authorized driver of the vehicle. That, Respondent No.3 being inebriated at the relevant time had handed over the vehicle to Respondent No.4. The accident occurred on account of the rash and negligent driving of Respondent No.4. The Claims Tribunal, ordered the Insurance-Company, Respondent No.2, to pay the compensation amount to the Respondent No.1, which was then to be realised from the Appellant, the Respondent No.3 and the Respondent No.4. Learned Counsel for the Appellant further urged that, in the Synopsis of arguments submitted before the Claims Tribunal, she had relied on the ratio of this High Court in Binod Kumar Agarwal vs. Ratna Kumar Chettri and Others,[SIKKIM LAW JOURNAL 2017, VOLUME 40, PART I, SL. NO.39, Page 239-249] which the Claims Tribunal failed to consider. That, the ratio supra of this High Court had referred to the Judgment of the Hon"ble Supreme Court in Skandia Insurance Company Ltd. vs. Kokilaben Chandravadan and Others ,(1987) 2 SCC 654. wherein it was held that the exclusion clause in the contract of insurance, making the owner absolutely liable, irrespective of circumstances leading to an unlicensed driver driving the vehicle, must be "read down", being in conflict with the main statutory provision. Further, while discussing the extent of vicarious liability of the owner, it was held that the owner was not liable when the accident was caused by the unlicensed person, when the licensed driver employed by the owner left the vehicle unattended, contrary to express or implied orders of the owner. It was canvassed that, as the facts supra are similar to the instant Appeal, the Appellant be absolved from paying the insurer, Respondent No.2, as erroneously ordered in terms of the impugned Judgment, dtd. 5/8/2020.

6.