JUDGMENT
1. Heard the learned Counsel for the insurer-appellant.
This appeal has been filed under Section 173 of the Motor Vehicles Act feeling aggrieved by the award of the Motor Accident Claims Tribunal, Jhansi, determining an amount of Rs. 2,32,000/- as just compensation to which the dependants of the deceased Samar Bahadur were found entitled to on account of his untimely death having been caused in an accident involving the offending motor vehicle - a bus which was ensured by the present appellant covering the risk.
2. The Tribunal after carefully considering the evidence and materials brought on record, had come to the conclusion that at the time of death the age of the deceased was about 52-53 years. He was a retired Constable in Border Security Force. His income was held to be Rs. 2,500/- per month excluding 1/3rd amount of the sum, which the deceased might have been spending upon himself, the annual dependency was taken to be at a figure of Rs. 20,000/- per annum and utilising the multiplier of 11, the Tribunal had calculated the amount of compensation which included the amount of Rs. 5,000/- for loss of consortium and another Rs. 5,000/- for loss of love and affection etc. together with an amount of Rs. 2,000/- to meet the expenses, incurred in the last rites.
3. It may be noticed at this stage that the claimants had come up with a case that the deceased was the sole bread earner of the family which consisted of his wife-3 daughters and one son.
4. The Tribunal had also come to the conclusion that the accident involving the death of Samar Bahadur had arisen out of the use of the offending motor vehicle as contemplated under Section 166 read with Section 165(1) of the Motor Vehicles Act and the claimants-dependants were entitled to the amount of compensation for which an amount of Rs. 2,32,000/- was determined to be just compensation. This amount was to carry a simple interest (c) 8% per annum.
5. Learned Counsel for the appellant has tried to assail the findings on the aforesaid aspect returned against it by the Tribunal. The aforesaid findings, however, could not be demonstrated to be suffering from any such legal infirmity which may justify an interference therein by this Court. The findings returned against the appellant by the Tribunal are amply supported and warranted by the evidence and material brought on record.
6. Learned Counsel for the appellant has strenuously urged that the insurer could not be saddled with any liability to pay the amount determined as compensation under the impugned award as there was a breach of the terms and conditions subject to which the insurance policy had been issued. The contention is that the offending motor vehicle was being driven by a person who was not authorised to drive the said vehicle as he did not have a proper licence issued from the Competent Authority under the provisions of the Motor Vehicles Act.
7. 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.
8. It may be noticed that in its decision in the case of United India Insurance Co. v. Lehru and Ors. I (2003) ACC 611 : 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.
9. 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 taken the defence of a breach of the condition in the certificate of insurance.
10. In this connection it may also be noticed that as clarified by this Court in th.2 case of National Insurance Co. v. Smt. Asha Devi and Ors. reported in I (2003) ACC 226 : 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, 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.
11. 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.
12. 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.
13. The dismissal of this appeal will not come in the way of the insurer-appellant initiating such proceedings.
14. 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.
15. This appeal is totally devoid of merits, which deserves to be and is hereby dismissed in limine.
16. 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 within one month from the date an application is filed by the appellant for the purpose so that it may be disbursed to the claimant.