Punjab-Haryana High Court
Sandeep Sharma vs Baljeet Kaur And Ors on 5 November, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No. 3363 of 2012 and connected cases 1
IN THE HIGH COURTOF PUNJAB AND HARYANA
AT CHANDIGARH
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Date of decision:- 05.11.2014
1. FAO No. 3363 of 2012
Sandeep Sharma .....Appellant
Vs.
Baljeet Kaur and others .....Respondents
2. FAO No. 3364 of 2012
Sandeep Sharma .....Appellant
Vs.
Sunita Rani and others .....Respondents
3. FAO No. 4261 of 2012
Sandeep Rathi .....Appellant
Vs.
Baljeet Kaur and others .....Respondents
4. FAO No. 4292 of 2012
Sandeep Rathi .....Appellant
Vs.
Sunita Rani and others .....Respondents
5. FAO No. 5803 of 2012
Baljeet Kaur and another .....Appellants
Vs.
Sandeep Sharma and others .....Respondents
6. FAO No. 2056 of 2013
MOHAN LAL BIMBRA
2014.11.18 11:55
I attest to the accuracy and
authenticity of this document
Chandigarh
FAO No. 3363 of 2012 and connected cases 2
Sandeep Rathi .....Appellant
Vs.
Sukhdev Singh and others .....Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
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Present: Mr. Gaurav Singla, Advocate
For the driver - Sandeep Sharma
Mr. Ashish Chaudhary, Advocate
for the owner - Sandeep Rathi
Mr. Anil Kumar Sharma, Advocate
for the claimants
Mr. Sukhdarshan Singh and Ms Puneeta Sethi, Advocate,
for the respondent - New India Assurance Company Limited
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Rekha Mittal, J.
This order shall dispose of aforementioned appeals as these have emerged out of awards passed by the Motor Accident Claims Tribunal, Sangrur (in short, 'the Tribunal') in regard to injuries sustained by the victims in the same accident on 18.06.2010 in which two vehicles i.e TATA Sumo bearing No. HR-55 JT 7613, driven by Sandeep Sharma (offending vehicle) and Maruti Car make Zen bearing No. PB 42-B-3950, driven by Jaswinder Singh (deceased) (ill fated vehicle) were involved.
The facts relevant for disposal of the appeals are that on 18.06.2010 at about 1.45 am, Jaswinder Singh son of Pal Singh (deceased) MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 3 was driving Maruti Zen Car in which Harjit Singh son of Sukhbir Singh, Ravi Kumar son of Rajinder Kumar and Sukhdev Singh son of Rajinder Singh were travelling. They were going from Sector 34-D, Chandigarh to Mohali. Ravi Kumar and Sukhdev Singh were sitting on rear seat of the car while Harjit Singh was sitting by the side of driver. As per the allegations, when they reached at Chawla Chowk, Mohali and were in the process of crossing the Chowk, TATA sumo-the offending vehicle came from the side of Amb Wala Chowk, Phase 7, Mohali driven in a rash and negligent manner, hit Maruti Zen car and all the four occupants of the Car sustained serious injuries. Ravi Kumar and Jaswinder Singh died on the spot. FIR No. 31 dated 18.06.2010 for offence punishable under Sections 304-A, 279, 337 and 338 of the Indian Penal Code was registered against Sandeep Sharma at Police Station Mataur, Mohali.
The driver of the offending vehicle filed the reply denying the averments of the application attributing rashness and negligence on his part with the averments that in fact accident occurred on account of rash and negligent driving of Maruti Zen Car. Sandeep Rathi, the owner of the offending vehicle filed separate reply denying all the material averments made in the application.
The insurance company also filed its reply and denied its liability to pay compensation to the claimants. It was averred that the claim application is bad for non-joinder of necessary parties i.e. owner and insurer of Maruti Zen Car bearing No. PB 42-B 3950. It also challenged maintainability of the application in the present form and driver of offending vehicle not holding a valid licence at the time of accident. MOHAN LAL BIMBRA 2014.11.18 11:55
The learned Tribunal framed issues with regard to factum of I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 4 accident and entitlement of the claimants to seek compensation which were decided in their favour. However, the insurance company was exonerated of its liability to pay compensation in view of its findings on issue No. 3 (Was first respondent not holding a legal and effective driving licence at the time of occurrence, if so its effect?), which read as follows:-
"40. Onus to prove this issue was upon the third respondent. In this regard, it needs to be stated that as per copy of insurance policy, Exhibit R-4, Tata Sumo bearing chassis No. 25899 and engine No. 715357 was insured with third respondent during period 28.10.2009 to 27.10.2010. As per, Exhibit R2, photocopy of registration certificate of Tata Sumo bearing registration No. HR 55 JT 7613, chassis number of the vehicle is 46521199K and engine number is 483DLTC55KQZ 715357. Even otherwise, it has not been disputed on behalf of third respondent that on the fateful day, the vehicle under reference i.e. Tata Sumo in question was insured with it.
41. On behalf of third respondent Shri Ashish Garg, Advocate, submits that Tata Sumo under reference was a commercial vehicle as in evident from the fact that there is an endorsement of 'Tourist Taxi' on the registration certificate (copy Exhibit R2) of the vehicle. Even, first respondent Sandeep Sharma, while appearing as RW1 has admitted that it was a tourist taxi.
42. While taking his arguments further, Shri Ashish Garg, Advocate, learned counsel for third respondent submits that first respondent was not competent to drive commercial vehicle on the basis of his driving licence, copy of which has been placed on record as Exhibit R1 because a driver holding MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 5 licence to drive motor cycle, scooter and jeep is not authorized to drive a commercial vehicle and in the situation, the third respondent is not liable to indemnify the insured n respect of payment of compensation of the applicants. In this regard, he relied upon National Insurance Company Limited versus Kaushalya Devi and others, 2008 ACJ 2144, Bajaj Allianz General Insurance Company Limited versus N.M. Rajaprakhas and another, 2010 ACJ 2706 and New India Assurance Company Limited versus Meena Jasuja and others, 2009 ACJ 1323.
43. It needs to be highlighted that vide insurance policy, copy of which has been placed on record as Exhibit R4, Tata Sumo under reference was insured as passenger carrying commercial vehicle. However, in driving licence (copy Exhibit R1) of the first respondent, there is no endorsement that he was authorized to drive the passenger carrying commercial vehicle or transport vehicle and he was only authorized to drive motor cycle, scooter and jeep. Even first respondent while appearing as RW1 has stated that he does not know if he was not pe5rmitted to drive a commercial vehicle on the basis of Exhibit R1. Exhibit R2-photocopy of registration certificate of Tata Sumo, bearing registration No. HR 55 JT 7613 and Exhibit R4-copy of its insurance policy show that it was registered as tourist taxi/commercial vehicle which could be driven by a driver holding licence to drive transport vehicle and the first respondent who was driving the vehicle had a licence (copy Exhibit R1) only to drive motor cycle, scooter and jeep meaning thereby that driving licence was granted in favour of the first respondent to drive vehicles other than a transport vehicle and MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 6 accordingly, it is held that first respondent was not holding a valid driving licence to drive a commercial vehicle as the Tata Sumo, bearing registration No. HR 55 JT 7613, admittedly a tourist taxi/a passenger carrying commercial vehicle.
44. In the situation when the vehicle in question was a Tata Sumo insured with third respondent as a passenger carrying commercial vehicle and fell into the category of transport vehicle being a tourist taxi, the third respondent cannot be held liable to indemnify the first or second respondent as regards the amount of compensation.
45. Thus, the issue is decided in favour of the third respondent."
Three separate appeals have been preferred by Sandeep Rathi (owner of the offending vehicle), two appeals have been preferred by Sandeep Sharma (driver of the offending vehicle) and one appeal has been filed by Baljeet Kaur and another, the claimants seeking enhancement of compensation in regard to death of Jaswinder Singh.
The parties (hereinafter) shall be referred to as 'the claimants', 'the respondents' (owner and driver) and 'the insurance Company' for facility of reference.
The appeals preferred by the owner and driver raise a common question for adjudication in regard to findings of the Tribunal on issue No. 3 and thus, exonerating the insurance company of its liability to pay compensation.
Counsels for the respondents contend that a similar issue came up for consideration before Hon'ble the Supreme Court of India in S. Iyyapan v. M/s United India Insurance Company Limited and MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 7 another, 2013(3) R.C.R. (Civil) 654 and the Apex Court set aside the judgment passed by the High Court, exonerating the insurance company of its liability to pay compensation in similar set of circumstances and held the insurance company liable to pay compensation without reserving any right to recover the amount of compensation after discharging liability qua the claimants despite the fact that driver of Mahindra Maxi Cab (vehicle in question) was possessing licence to drive a light motor vehicle and not a commercial vehicle. It is argued with vehemence that as the controversy raised in the present appeals filed by the respondents (owner and driver of the offending vehicle) is squarely covered by the judgment in S. Iyyapan's case (supra), the findings recorded by the Tribunal holding the insurance company being not liable to pay compensation may be set aside and the insurance company should be held jointly and severally liable to pay compensation along with the driver and owner of the vehicle.
Counsel representing claimants (Baljit Kaur and another) has submitted that Jaswinder Singh (deceased) son of the claimants was a student of fourth semester of B.Tech in Bhai Gurdas Institute of Engg. and Technology, Sangrur and, therefore, the learned Tribunal has erroneously equated his earning capacity with that of a labourer while assessing his income at Rs.4,104.00 per month. It is further argued that in view of the fact that the deceased was to pass his engineering course in another two years and get a job in some good company, income of the deceased is liable to be assessed at a reasonable rate, may be Rs.15,000.00 per month.
Another submission made by counsel is that the learned Tribunal has adopted multiplier of 13 in view of age of parents of the claimants when otherwise multiplier is required to be applied according to MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 8 age of the deceased in the light of principles laid down in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 affirmed in Reshma Kumari and others v. Madan Mohan and another, 2013 (2) RCR (Civil) 660 after noticing judgment of the Apex Court in New India Assurance Company Limited v. Shanti Pathak (Smt) and others, (2007) 10 Supreme Court Cases 1. He has further relied upon judgment of Hon'ble the Supreme Court in Amrit Bhanu Shali and others v. National Insurance Company Limited and another, (2012) 11 Supreme Courts Cases 738.
Counsel for the insurance company has submitted that indisputably, the offending vehicle was insured with the insurance company as a commercial vehicle for transporting passengers and, therefore, the driver of the offending vehicle was required to possess a driving licence with endorsement of commercial/transport vehicle. The driver of the offending vehicle was holding driving licence Ex.R1 for driving a light motor vehicle i.e. motor cycle, scooter and jeep but he did not have authorization to drive a passenger carrying commercial vehicle or transport vehicle. It is submitted that the learned Tribunal has rightly held that the driver was not holding a valid driving licence to drive a commercial vehicle i.e. TATA Sumo bearing No. HR 55 JT 7613, admittedly, a Tourist Taxi/Passenger carrying vehicle, therefore, the insurance company cannot be held liable to indemnify the insured in regard to his liability to pay compensation.
Counsel further submitted that in S. Iyyapan's case (supra) cited by counsel for the respondents (owner and driver of the offending vehicle) the question of entitlement of the insurance company to recover the MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 9 amount of compensation has not been decided, may be, it was not pressed by counsel for the insurance company before the Apex Court. It is argeed that as the insured is guilty of violating terms and conditions of the insurance policy for want of a valid driving licence authorizing the driver to drive the commercial vehicle in question, at best, the insurance company may be liable to discharge liability qua the claimants, but the insurance company certainly has the right to recover the amount of compensation after payment to the claimants.
I have heard counsel for the parties and perused the records. On consideration of the rival submissions made by counsel for the parties, it becomes evident that two questions which require answer are:-
i) Whether the claimants (Baljit Kaur and Pal Singh) are entitled to enhancement of compensation in regard to death of their son Jaswinder?; and
ii) What are the consequences flowing from the fact that driver of the offending vehicle was not holding a driving licence to drive the Tourist Taxi/Passenger Carrying Commercial Vehicle?
Baljeet Kaur, mother of the deceased appeared in the witness box and deposed that Jaswinder Singh, was a student of B.Tech (fourth semester) in Bhai Gurdas Institute of Engineering and Technology, Sangrur and also doing tuition work thereby earning Rs.10,000.00 per month. There is no challenge to plea of the claimants that the deceased was a student of B. Tech (fourth semester). Nevertheless, the claimants failed to adduce any convincing evidence on record that the deceased was taking any coaching classes and making any earning in that regard.
MOHAN LAL BIMBRA The learned Tribunal 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 10 assessed income of the deceased by taking into consideration minimum wage available for casual labour at Rs.4,104.00 per month. The income assessed by the Tribunal, in my considered opinion, is on lower side in view of the fact that the deceased was an Engineering student in fourth semester and in another 2/3 years, he would have completed his studies and joined the job. That being so, I assess income of the deceased at Rs.8,000/- per month.
The learned Tribunal allowed deduction to the extent of 50% for personal and living expenses of the deceased which is in consonance with the judgment in Smt. Sarla Verma's case (supra). However, the learned Tribunal wrongly allowed multiplier of 13 to assess loss of dependency by taking into consideration age of the claimants. Hon'ble the Supreme Court of India in Smt. Sarla Verma's case (supra) in an effort to bring fairness and firmness in the decision making process and the decisions put it best efforts to lay down certain principles with regard to multiplier to be adopted, deduction to be made in regard to personal and living expenses and benefit of future prospect etc. and held that when the deceased is between the age bracket of 15-25, multiplier of 18 should be applied. The principle laid down in Smt. Sarla Verma's case (supra) in regard to multiplier was later affirmed in Reshma Kumari's case (supra) wherein the Court also noticed judgment in Shanti Pathak's case (supra) in which, the multiplier was allowed in view of age of the parents. This question also came for consideration in Amrit Bhanu Shali's case (supra) wherein, multiplier has been allowed in view of age of the deceased and not that of parents. In view of the above, as the deceased was in the age bracket of 21- 25 years, multiplier of 18 is to be allowed to compute loss of dependency. MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 11 The claimants shall be entitled to compensation for loss of dependency to the tune of Rs.4,000.00 x12x 18 = Rs.8,64,000.00.
The parents of the deceased shall be entitled to an amount of Rs.50,000.00 for loss of love and affection of their son. They are also entitled to an amount of Rs.25,000.00 each for expenses on funeral and last rites and loss to estate. The total amount of compensation, payable to the claimants is calculated at Rs.8,64,000.00 + Rs.50,000.00 + Rs.25,000.00 + Rs.25,000.00 = Rs.9,64,000.00 and the enhanced amount of compensation comes to (Rs.9,64,000.00 - Rs.3,50,000.00) Rs.6,14,000.00, which shall be payable to the claimants in equal shares along with interest @ 7.5% per annum from the date of petition till payment thereof. However, in case the Insurance Company deposits the amount within a period of 45 days in the Tribunal, the enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till realization.
This brings the Court to the second question in the context of findings of the Tribunal on issue No. 3.
Counsels for the respondents have not disputed the factual findings of the Tribunal that the vehicle in question is a Tourist Taxi/Passenger Carrying Commercial Vehicle and driver namely Sandeep Sharma was not holding a driving licence to drive a commercial vehicle rather was possessing a driving licence Ex. R1 to drive motor cycle, scooter and jeep. Counsels have neither disputed that it was one of the conditions of the insurance policy that the driver must possess a valid driving licence to drive the insured vehicle.
Section 149 of the Motor Vehicles Act, 1988 (in short, 'the Act') provides for duty of insurers to satisfy judgments and awards against MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 12 persons insured in respect of third party risks. The insurance company can raise a defence which comes within the purview of sub section (2) of Section 149 of the Act which reads as under:-
Section 149 - Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks-
(1) xx xx xx (2) No sum shall be payable by an insurer under sub-
section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by MOHAN LAL BIMBRA any person who has been disqualified for holding or 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 13 obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact or by a representation of fact which was false in some material particular.
(3) xx xx xx xx"
As has been noticed hereinabove but for the sake of repetition, the vehicle was being used as a Taxi and therefore, a commercial vehicle.
The driver at the relevant time was holder of a licence to drive a light motor vehicle only and did not possess licence to drive a commercial vehicle. Evidently, there was breach of one of the conditions of contract of insurance.
A similar issue was earlier raised before Hon'ble the Supreme Court of India in National Insurance Co. Limited v. Kusum Rai and others, 2006 (2) R.C.R. (Civil) 313. In this case, the Tribunal held that the owner/insured had violated the terms of contract of insusrance as the driver was not holding a driving licence to drive Taxi/Commercial vehicle but while relying upon decision of the Supreme Court of India in New India Assurance Co., Shimla v. Kamla and others, 2001 (3) R.C.R. (Civil) 716 held that the insurance Company cannot get rid of its third party liability as said question arises only between the owner of the vehicle and the insurance company. It was further held that the insurance company can recover this amount from owner of vehicle. The appeal preferred by the Insurance Company (appellant) before the High Court was dismissed on the premise that no appeal was maintainable where for reliance was placed by the High MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 14 Court on a decision of the Apex Court in National Insurance Company Limited, Chandigarh v. Nicolletta Rohtagi and others, 2002 (7) S.C. 251 by holding that the mere fact that there was violation of the terms and conditions subject to which the insurance policy had been issued, cannot have the effect of exonerating the insurer from the statutory liability cast upon him in this regard to pay the amount to the third party victim. It was further held that it would be open to the insurer appellant to initiate an appropriate proceeding for refund of the amount paid by it to the claimants and establish the breach of the terms and conditions subject to which the insurance policy had been issued. The Apex Court, on due consideration of the provisions of Section 149 of the Act and judgments relevant in the context, concluded in para 16 that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise but declined to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of jurisdiction under Article of 136 of the Constitution of India but directed that the appellant may recover the amount from the owner in the same manner as was directed in Oriental Insurance Company Limited v. Nanjappan, 2004 (13) SCC 224.
In S. Iyyapan's case (supra), referred to by counsel for the respondents, the Tribunal held the insurance company jointly and severally liable to pay compensation with the observations that the person possessing licence to drive a light motor vehicle is entitled to drive Mahinder Maxi Cab. The High Court in the first appeal set aside the award passed by the Tribunal holding the insurance company liable to pay compensation while relying upon judgment in the case of Sardari v. Sushil Kumar, 2008 (2) MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 15 R.C.R. (Civil) 379 and it was held that the driver was not having the driving licence to drive the commercial vehicle on the date of accident, therefore, there was breach of condition of the contract of insurance. The Apex Court had taken note of various judgments relevant on the issue including one in Kusum Rai's case (supra) and held in para 18 and 19, usefully quoted hereinbelow:-
"18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 16
19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside."
No doubt, in para 19, the Apex Court set aside the judgment of the High Court by holding that the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle, but the Court did not dilate on the issue if the insurance company has the right to recover the amount of compensation for violation of one of the conditions of the insurance policy, after discharging liability qua the claimants, may be, that counsel for the insurance company did not make a prayer in this regard. However, in para 18, in the concluding lines, it has been said that it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurance company to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
Keeping in view the admitted position of the instant case that the vehicle in question was being plied as a commercial vehicle, insured as MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh FAO No. 3363 of 2012 and connected cases 17 such with the insurance company and the driver was not possessing a driving licence to drive a commercial vehicle, the insured is guilty of violating one of the conditions of the insurance policy. When the facts and circumstances of the instant case are analyzed in the light of dictum in view judgment passed in Kusum Rai's case (supra), I am of the considered opinion that though the insurance company cannot be altogether exonerated of its liability to pay compensation to the victims being a third party but it certainly has the right to recover the amount of compensation from the insured after discharging liability qua the claimants. With these observations, the findings recorded by the learned Tribunal on issue No. 3 are modified accordingly.
For the reasons aforesaid, the appeals are disposed of in the aforesaid terms.
Xerox copy of the order be placed on each of the connected files.
(Rekha Mittal) Judge 5.11.2014 mohan MOHAN LAL BIMBRA 2014.11.18 11:55 I attest to the accuracy and authenticity of this document Chandigarh