JUDGMENT : 

Hon’ble Mr. Alok Mahra, J.

This appeal under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the appellant against the judgment and award dated 31.01.2019 passed by the learned M.A.C.T./2^nd Additional District Judge, Udham Singh Nagar in M.A.C.P. No. 302 of 2016 “Smt. Soni Devi and Others Vs. M/s Benetton India Private Limited and Others”. By the said judgment, the learned Tribunal partly allowed the claim petition and awarded a compensation of Rs. 21,95,886/- against the appellant- Insurance Company, but granted the Insurance Company the right to recover the said amount from the appellant-owner/driver of the offending vehicle on the principle of “pay and recover”.

2. Briefly stated, the facts of the case are that on 09.06.2016, the deceased, Jai Kishore Mishra, was riding his bicycle from Kheda, Rudrapur to his office at SIDCUL, Pantnagar. At about 2:00 p.m., when he reached SIDCUL Chowk, in front of Shiv Mandir, an i-20 car bearing registration number HR- 26C.P.-3661, driven rashly and negligently, hit the deceased from behind, causing him grievous injuries. He was immediately rushed to District Hospital, Rudrapur, but succumbed to his injuries before reaching the hospital. The deceased, aged 39 years, was employed with M/s Neel Metal Products Pvt. Ltd., SIDCUL, Pantnagar, drawing a monthly salary of Rs. 35,365/-. The claimants, namely his widow, children, and parents, filed the claim petition seeking compensation of Rs. 75,86,405/-.

3. The claimants filed documentary evidence including the FIR, pay slips, ration card, voter ID cards, and death certificate. The opposite parties produced the vehicle registration certificate, insurance policy, driving licence of the driver, FIR, charge sheet, postmortem report, and income details of the deceased. Oral evidence was led the claimant no.1 (wife of deceased), eyewitness PW1 Kaushal Kishore Saxena, and Pankaj Pathak (HR of Neel Metal Products Ltd.) were examined for the claimants. The Insurance Company examined its Legal Executive, DW1 Dharam Chaubey.

4. On the basis of the pleadings and evidence, the Tribunal framed the following issues:

i) Whether the accident dated 09.06.2016 occurred due to rash and negligent driving of the Car No. HR-26CP-3661, resulting in the death of Jai Kishore Mishra?

ii) Whether, on the date of the incident, the driver of the car was not holding a valid and effective driving licence and the vehicle was not covered by a valid insurance policy? If so, its effect?

iii) Whether the claimants are entitled to compensation? If so, to what extent and from whom?

5. The Tribunal answered issue no.1 in favour of the claimants. On issue no.2, the Tribunal recorded a finding that the offending vehicle was duly registered and insured, and the driver was holding a valid and effective driving licence. On issue no.3, the Tribunal awarded compensation of Rs. 21,95,886/- in favour of claimant nos.1 to 6. However, on the premise that the driver was under the influence of alcohol at the time of accident, the Tribunal granted the Insurance Company the right to recover the awarded amount from the owner-cum-driver of the offending car.

6. Learned counsel for the appellant would submit that the Tribunal committed a manifest error in granting recovery rights to the Insurance Company. The Tribunal relied solely on the fact that a charge sheet had been filed against appellant no.2 in F.I.R. No.57 of 2016, under Sections 279, 304-A IPC and Section 185 of the Motor Vehicles Act, 1988. The said charge sheet has already been challenged by the appellant in proceedings under Section 482 Cr.P.C., which are pending adjudication. Mere filing of a charge sheet cannot form the basis to fasten such liability.

7. It is further argued that the Tribunal erred in holding that there was violation of the terms of the policy. The finding was based on Rule 2(c) of the Insurance Policy, which excludes liability if the vehicle is driven under the influence of intoxicating liquor or d