Rekha Borana, J
1. The appeal is reported to be barred by 154 days. An application under Section 5 of the Limitation Act has been filed for condonation of delay.
2. For the reasons stated in the application, the same is allowed. The delay caused in filing the present appeal is condoned.
3. The present appeal has been preferred on behalf of the owner of the vehicle in question against the judgment/award dated 06.01.2009 vide which
while awarding compensation in favour of the claimants, the Insurance Company was held entitled to ""Pay and Recover"". The said finding was arrived
at by the learned Tribunal on the ground that driver of the vehicle possessed a license for a light motor vehicle (LMV) and hence, was not entitled to
drive a heavy motor vehicle (HMV). The vehicle in question was a transport vehicle and hence, the learned Tribunal held that the Insurance-Company
though would be liable to pay compensation but would be entitled to recover the same from the owner of the vehicle.
4. Learned counsel for the appellant submits that the driver possessing a license qua light motor vehicle can also drive a light transport vehicle as held
by Hon’ble the Apex Court in Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) 14 SCC 663.
5. Learned counsel for the respondent-Insurance Company is not in a position to refute the above settled legal position, however, he submits that
correctness of the judgment in Mukund Dewangan's case (supra) is pending consideration before the Hon'ble Constitution Bench. But the Constitution
Bench has observed that till the issue is decided by it, the ratio as laid down in Mukund Dewangan's case (supra) would hold the field.
6. In view of the above, the present appeal is allowed. The direction as issued by the learned Tribunal to the Insurance-Company to ""Pay and
Recover"" is hereby set aside. The impugned judgment and award dated 06.01.2009 is modified to that extent.
The Insurance Company would be liable to pay the compensation and would not be entitled to recover the same from the owner/driver of the vehicle.
7. Stay petition also stands disposed of.
