THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.2367 of 2008 JUDGMENT: This appeal is directed against the order, dated 16.05.2008, in O.P.No.580 of 2006 on the file of the learned Chairman, Motor Accident Claims Tribunal-cum-I Additional District Judge, Kadapa, wherein the said claim application ﬁled by the 1st respondent herein under Section 166 of the Motor Vehicles Act, 1988 ( for brevity, ‘the Act’), was allowed in part awarding compensation of Rs.1,63,738/- with interest @ 6% p.a. from the date of the petition. 2. Heard both sides. Perused the record. 3. 1st respondent herein ﬁled the claim application seeking compensation of Rs.2,50,000/- for the injuries sustained by him in a motor accident that occurred on 31.05.2005. According to the claimant, on that day, he accompanied his friend-Muskim in his auto bearing No.AP04-U- 5042 to Gunthakal for the purpose of ﬁxing new seats and after completion of the work they were returning to Kadapa and at about 9.45 p.m. near Rayalacheruvu village on account of the rash and negligent driving of the auto by its driver-Muskim the vehicle dashed a stationed lorry from behind as a result of which Muskim died instantaneously and the claimant sustained multiple grievous injuries. He was shifted to Government hospital, Tadipatri and from there to Government hospital, Anantapur, where he was inpatient for two days in connection with treatment for compound fracture of right fore arm and left leg and that he continued his treatment in the private hospital at Kadapa from 02.06.2005 to 15.06.2005, where he underwent surgery for ﬁxation of rods and that he was again admitted in the hospital on 04.09.2005 and he was discharged on 14.09.2005. It is further pleaded that the claimant was clearer of a lorry and earning Rs.3000/- per month. On account of the injuries, which resulted in permanent disability, he lost his earning capacity. 2 nd respondent herein-owner of the auto and the appellant insurer filed counter, opposing the claim. 4. During enquiry before the Tribunal, P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked on behalf of the claimants. R.W.1 was examined and Exs.B1 and B2 were marked on behalf of the respondents. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the auto by its driver. The said ﬁnding is not seriously challenged in this appeal. The Tribunal awarded total compensation of Rs.1,63,738/- with interest @ 6%p.a., fastening the joint and several liability on the appellant-insurer. Aggrieved by the same, the insurer preferred the present appeal. 6. The main contention of the learned counsel for the appellant is that the auto was having a permit to travel up to a radial distance of 60 kms and the auto had no permit to travel beyond the said distance and the accident having occurred at a distance of about 150 kms beyond the permitted limit, there has been violation of the terms and conditions of the policy and therefore the insurer cannot be fastened with any liability. 7. It is not disputed and it is also borne out by the record that the accident occurred near Rayalacheruvu village at a distance of 150 kms from Budwel. Ex.B2 is the permit issued by the transport department to the oﬀending auto, wherein it is stipulated that the permit was valid within a radius of 60 kms from the residence of the owner. 2nd respondent herein-owner is admittedly a resident of Budwel. Thus, there has been a clear violation of the terms and conditions of the permit as the auto was taken beyond and out side the permitted radial distance of 60 kms from Budwel. Ex.B1-copy of the policy stipulates that the policy covers only vehicle plying under a permit issued under the Motor Vehicles Act. 8. When once it is shown that the auto has been used without a permit, it amounts to violation of the terms and conditions of the policy. The permit- Ex.B2 was valid only for a distance of 60 Kms radius from Budwel. It follows that there is no valid permit at all for taking the auto beyond the said radial distance of 60 kms from Budwel. It follows that when the auto was taken to Gunthakal for the purpose of ﬁxing new seats, when it met with an accident near Rayalacheruvu village on its way back and the place of the accident is beyond 60 kms from Budwel, the auto plied without a valid permit. If the accident occurs in the course of such plying, without a valid permit, no coverage of any kind is contemplated under the terms of the policy. The liability of the insurer is purely contractual and is borne by the terms and conditions of the policy. When the policy does not cover the risk of any person, either in the case of death or fatal injury, on account of the accident that occurs while the oﬀending vehicle was being plied, without a valid permit, no contractual liability can be enforced against the insurer under the policy-Ex.B1 and consequently no joint liability can be fastened on the insurer. The Tribunal has clearly erred in fastening the joint liability on the appellant-insurer for the compensation amount even though there has been a clear violation of the terms and conditions of the policy and in fact, the risk is not covered at all in respect of an accident that occurred when the vehicle was being plied without a valid permit. The quantum of the compensation awarded by the Tribunal is not seriously disputed. 9. In pursuance of the interim order, dated 18.08.2008, the appellant-insurer deposited 50% of the compensation amount with proportionate interest and costs and by order, dated 05.11.2008, the claimant was permitted to withdraw the said amount without furnishing any security. It is stated that the said amount has already been withdrawn by the claimant. 10. Learned counsel for the appellant would submit that the insurer may be directed to pay the amount at the ﬁrst instance and recover the same from the owner and in that connection he relied upon a decision of the apex Court in NATIONAL INSURANCE COMPANY LIMITED v. CHALLA UPENDRA RAO AND OTHERS[1], wherein the apex Court has given such a direction to the insurer to pay at the ﬁrst instance and recover from the owner later. 11. The said direction given by the apex Court in exercise of the powers under Article 142 of the Constitution of India cannot be issued by this Court, especially in a case like the present one where there has been clear violation of the terms and conditions of the policy by the owner of the vehicle, which exonerates the appellant-insurer from the liability. 12. Having regard to the submission made by the learned counsel for the claimant that the claimant was poor and illiterate and that he was eking out his livelihood as a cleaner, which avocation he is unable to pursue on account of the injuries sustained by him, it is held that the appellant- insurer may not recover the amount already deposited and withdrawn by the claimant. Appellant-insurer is at liberty to recover the said amount from the owner of the vehicle. Similarly, it is open to the claimant to recover the balance amount from the owner of the vehicle. The impugned award is modified accordingly. 13. In the result, appeal is allowed to the extent stated above. _______________________ G.V.SEETHAPATHY, J 18th November, 2011 Tsy [1]( 2004) 8 SUPREME COURT CASES 517