The insurance company is liable to compensate claimants despite policy violations, applying the pay and recovery principle.

THIS MFA, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by the insurance company challenging its liability in the judgment and award dated 16.06.2016, passed in MVC No.511/2015, by the Motor Accident Claims Tribunal-II, Vijayapur.

2. Brief facts leading to filing of the claim petition are as under:

That on 06.05.2014 at abut 05-30 a.m., when the deceased Madina slept in the hut and others slept in front of the hut situated at Bevinhalli area, Kenal Road at Shahapur Taluk, Yadgir District, at that time, a Tipper bearing No.KA-37/A-2512 came in very high speed and in rash and negligent manner and turned turtle on the hut and as a result of the accident, Madina sustained grievous injuries all over her body and died on the spot.

3. The deceased was aged 45 years, doing coolie work and earning Rs.7,500/- per month. Due to untimely death of the deceased, the claimants lost their dependency. Respondent No.7 was the owner and appellant was the insurer of the said Tipper.

4. The appellant, who was respondent No.2 before the Tribunal in the written statement contended that the driver of the Tipper was not having effective driving licence at the time of accident. The Tribunal after recording evidence, awarded compensation and held that the appellant herein/respondent No.2 before the Tribunal/ insurance company and respondent No.7 herein/respondent No.1 before the Tribunal i.e., owner are jointly and severally liable to pay the compensation.

5. Heard learned counsel for the appellant, learned counsel for respondent Nos.3 and 4 and learned counsel for respondent No.7.

6. Learned counsel for the appellant/insurance company would contend that the driver of the Tipper/Lorry was not holding driving licence as on the date of the accident. He contends that the appellant/insurance company has issued notice to the owner as per Ex.R.2 for producing driving licence and it has been served on the owner as per Ex.R.3/postal acknowledgment. Even notice has been issued to the driver of the vehicle and a copy of which is produced at Ex.R.4. He submits that in spite of the said notice, neither the driver nor the owner has produced the driving licence of the driver of the Tipper/Lorry. He submits that in the absence of a driving licence, as the owner has authorized the person, who was not holding a driving licence to drive the Tipper/Lorry, it amounts to violation of the conditions of the policy. Hence, the insurance company is not liable to pay the compensation.

7. Learned counsel for the claimants/respondent Nos.3 and 4 would contend that if the driver does not have driving licence, then in view of the judgment of the Hon’ble Apex Court in the case of Shamanna and Another Vs. The Divisional Manager, The Oriental Insurance Company Limited and others reported in 2018 (9) SCC 650, the Courts can direct the insurance company to pay the compensation amount and recover the same from the owner.

8. Learned counsel for respondent No.7 submits that she has no instructions from her party.

9. Having heard the learned counsel for the parties, this Court perused the impugned judgment and other materials placed on record. The appellant/insurance company has taken up a specific defence before the Tribunal in the written statement that the driver of the Tipper bearing No.KA-37/A-2512 was not holding the valid driving licence. The insurance company has issued notice to the owner, who is respondent No.7 herein to produce the driving lience of the driver and copy of the said notice is at Ex.R.2 and the same has been served on the owner as per Ex.R.3/postal acknowledgment. The owner in response to the said notice has not produced the driving licence. Even notice has been issued t