JUDGMENT S. P. Srivastava, J.
1. Heard the learned counsel for the insurer/ appellant.
Sri S. D. Ojha, learned counsel for the clatmants-caveators-respondents, who has put in appearance at this stage, has also been heard.
2. The appellant has filed the present appeal under Section 173 of the Motor Vehicles Act feeling aggrieved by the award of the Motor Accident Claims Tribunal, determining an amount of Rs. 4,08,000 as just compensation to which the dependants of the deceased Rajesh were found entitled to on account of his untimely death in an accident involving the offending motor vehicle, a Truck which had been insured by the present appellant covering the risk.
3. The Motor Accident Claims Tribunal, on a careful consideration of the evidence and materials brought on record, had come to the conclusion that the deceased Rajesh was aged about 24 years. The income of the deceased was found to be Rs. 3,000 per month. The family of the deceased was quite large. Besides his wife, he had left behind two minor children and parents. After excluding the 1/3rd of the income of the deceased which he might have been spending upon himself, the Tribunal had determined the extent of annual dependency to be Rs. 24,000 only for calculating the compensation. The Tribunal utilizing the multiplier of 17 had calculated the amount of compensation as Rs. 4,08,000 with an interest of 9% per annum simple interest.
4. The only submission urged and pressed in support of the appeal by the learned counsel for the appellant is that the offending motor vehicle was being driven by a person who had no valid licence to drive the vehicle. The contention is that there was a breach of the terms and conditions subject to which the insurance policy had been issued covering the risk.
5. So far as the statutory liability of the Insurer-appellant contemplated under the provisions of Motor Vehicles Act in the matter relating to the payment of just compensation determined by the Motor Accident Claims Tribunal is concerned, 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.
6. It may be noticed that in its decision in the case of United India Insurance Company v. Lehru and Ors., 2003 (2) AWC 16O1 (SC) : 2003 AIR SCW 1695, the Apex Court had clearly observed that where the owner had satisfied himself that the driver has a licence and is driving competently, there would be no breach of Section 149(2)(a)(ii) of the Motor Vehicles Act. Further it was indicated that the insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case, the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured.
7. It was further observed that in a case where without the knowledge of the insured, if by driver's acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.
8. In this connection, it may also be noticed that as clarified by this Court in the case of National Insurance Co. v. Smt. Asha Devi and Ors., 2003 (2) AWC 1227 : 2003 ALJ 247, "the status of the insurer in law so far as the statutory liability sought to be fastened upon him under the Act is concerned, it cannot be more than that of a guarantor and he acts as a security for the third party with respect to its realizing damages for the injuries suffered but a right to get any amount paid in excess refunded to it by the insured stands secured. The ultimate burden always remains cast or fastened on the insured/owner of the motor vehicle".
9. In such a situation, it is always open to the insurer to get the amount, paid in excess, refunded to it from the owner/insured in an appropriate proceedings initiated before the Motor Accident Claims Tribunal in which proceedings such a dispute can be decided between the insurer and the insured after affording an opportunity of hearing to the insured in accordance with law.
10. It will, therefore, be open to the insurer-appellant to initiate an appropriate proceeding for the 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.
11. The dismissal of this appeal will not come in the way of the insurer-appellant initiating such proceedings.
12. Taking into consideration the totality of the facts and circumstances as brought on record, no justifiable ground has been made out for any interference by this Court in the impugned award.
13. This appeal is totally devoid of merit, which deserves to be and is hereby dismissed in limine.
14. As prayed, the amount of Rs. 25,000 deposited in this Court by the insurer-appellant under Section 173 of the Motor Vehicles Act be remitted to the Motor Accident Claims Tribunal concerned wilhin one month from the date an application is filed by the appellant for the purpose so that it may be disbursed to the claimants.