THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 3346 of 2011 JUDGMENT: The appeal is filed by the insurance company against the order dated 30.04.2005 in M.V.O.P.No.554 of 2002 on the file of the Motor Accident Claims Tribunal-cum-III Additional District Judge, Vijayawada questioning the liability for the payment of the compensation in the first instance pay and recover the same from the owner of the vehicle. The facts of the case are that the deceased Subbarao was said to be traveling in a Tata sumo bearing No.AP 16N 5969 on 24.02.2000, when the lorry bearing No.ATK 25 driven by the 1st respondent owned by the 2nd respondent and insured by the appellant herein, in a rash and negligent manner and dashed against the Tata sumo, as a result of which the deceased and others received multiple injuries and he died. A claim was made for a compensation of Rs.3,50,000/- by the dependants. The owner of the Tata sumo was added as respondent No.4 and the insurer of the Tata sumo was also added as respondent No.5. The 1st and 4th respondents remained ex parte and the 2nd, 3rd and 5th respondents filed written statements denying the averments in the petition, nature of the injuries to the deceased and also the claim for compensation. The lower Tribunal, after considering the contentions found that the incident was due to the fault of the lorry and granted compensation of Rs.2,85,000/-, however, found that as the driver of the lorry was not having valid driving license, the insurance company is directed to deposit the amount and recover the same from the owner. Aggrieved by the same, the present appeal is filed. The point for consideration is whether the appellant herein is not liable to pay the amount? POINT: As can be seen from the grounds of appeal, the contention of the appellant is that the incident was due to the fault of the driver of the Tata sumo as he was in an intoxicated condition and the liability of the driver of the lorry is not correct. However, the police after investigation have filed a charge sheet against the driver of the lorry but incidentally found some liquor bottles in the Tata sumo, which gave scope for the appellant to contend that the driver of the Tata sumo was under intoxication. It cannot be forgotten that there are some other occupants in the Tata sumo and liquor bottles cannot be said to be one belonging to the driver of the Tata sumo. Therefore, there are no reasons to disagree with the finding of the lower Tribunal that the incident was due to the fault of the driver of the lorry. The learned counsel for the appellant contends that the driver of the vehicle was not having any license and this fact having been accepted by the lower Tribunal erred in directing the appellant to deposit the amount first. Evidently, it is not a case where the driver of the lorry was not having any license at all. In fact, the pleadings or the evidence on record, does not disclose the above plea. If the driver of the lorry was not having any license, then the question of liability to first pay and recovery does not arise. But, if the driver of the lorry was having one type of license and was not competent to drive the lorry, still in view of the judgment of the Hon’ble Supreme Court reported in National India Insurance Co. Ltd. v. Swaran Singh and others[1], the claim relates to the third parties and insurance company cannot avoid the liability. Consequently, the appellant cannot avoid the liability and in fact there is also no material to show that the owner of the lorry knowingly entrusted the vehicle to the driver, who was not having a valid driving license. Therefore, there are absolutely no merits in the appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 22-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO M.A.C.M.A. No. 3346 of 2011 DATE: 22-11-2011 MR [1] 2004 SCCL.COM 22= 2004 ACJ 1