1. This appeal has been preferred against the common judgment and award dated 27.06.2008 passed by the Motor Accident Claims Tribunal (Aux.), Rajkot in M.A.C.P. No.560/2006 filed u/s.163-A of M.V. Act whereby, the claim petition was allowed in part and the appellant herein, original opponent no.4, has been jointly and severally held liable to make payment of compensation of Rs.2,28,500/- along with interest at the rate of 7.5% per annum from the date of application till its realization to respondents no.1 to 4 herein, original applicants.
2. The aforesaid claim petition was filed in connection with the vehicular accident that took place on 21.01.2006 involving a Car bearing registration No. GJ-3K-9199 insured with the respondent no.6 herein and motor-cycle bearing registration No. GJ-3AR-671 insured with the appellant herein.
3. It has been mainly contended on behalf of the appellant that the driver of motor-cycle No. GJ-3AR-671 was not holding a valid and effective driving licence at the time of accident and therefore, the appellant could not be held liable to pay compensation, as the claim was made u/s.163-A of the M.V. Act. In support of the submission, reliance has been placed on the decision of the Apex Court in the case of National Insurance Company Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 wherein, it has been held that an insurer is entitled to raise the defence in a claim petition filed u/s.163-A or 166 of the M.V. Act inter alia in terms of Section 149(2)(a)(ii) of the said Act.
4. None appears on behalf of the owner of the vehicle insured with the appellant-Insurance Company, though served.
5. Heard Mr. Shalin Mehta learned counsel for appellant and Mr. Vasant Shah learned counsel for respondent no.6. In Para-24 of the impugned award, the Tribunal has recorded a finding that the motor-cyclist was not holding a valid and effective driving licence at the time of accident. But, it ignored the aforesaid finding on the ground that the claim petition was filed u/s.163-A of the M.V. Act and therefore, the appellant was liable to satisfy the claim of compensation. Considering the principle rendered in Swaran Singh's case (supra), it has to be said that the conclusion recorded by the Tribunal is illegal and erroneous since the insurer is entitled to raise defence in terms of Section 149(2) of the said Act in proceedings u/s.166 or 163-A of the Act. Hence, the impugned award holding the appellant liable to satisfy the claim deserves to be quashed and set aside.
6. For the foregoing reasons, the appeal is partly allowed. The impugned common judgment and award passed in M.A.C.P. No.560/2006 is quashed and set aside only qua the extent of imposition of liability upon the appellant-Insurance Company to make payment of compensation. It is, however, observed that if the amount deposited before the Tribunal is already withdrawn by the original claimant, then the same shall not be recovered from the original claimant but, shall be recovered from the owner of the offending vehicle and if the amount has not been withdrawn by the original claimant, then the same shall be refunded to the Insurance Company and the claimant shall be at liberty to recover the balance amount from the owner of the offending vehicle. The impugned award stands modified to the above extent. The appeal stands disposed of accordingly. No order as to costs.
[K. S. JHAVERI, J.] Pravin/*