THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No. 469 of 2010 Judgment: Challenging the award dated 20.10.2009 passed in O.P. No. 207 of 2008 by the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Tirupati, awarding compensation of Rs.3,09,270/- with interest at 6% p.a., to the first respondent-claimant herein, the appellant-Insurance Company filed the present appeal. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. The facts of the case, in brief, are as follows. On 14.07.2007 at about 12.00 Noon when the claimant went to Dhamalacheruvu bus stop on his Kinetic Spark Motor Cycle bearing No. AP 03 E 7243 and when he stationed his motor cycle along the left side of the road, the driver of the luggage auto bearing No. AP 03 W 5641 drove the same in a rash and negligent manner while reversing the auto and dashed against the claimant, as a result of which the claimant fell down and sustained bleeding injuries and fracture. The police, Vedurukuppam P.S., registered a case in Crime No.23 of 2007 under Section 337 IPC and later filed charge sheet against the driver of the luggage auto for the offences under Sections 338 and 279 IPC. The claimant was shifted to Pachikapallam Government hospital and then he was shifted to Community Health Centre, Puttur, and from there to SVRRGG Hospital, Tirupati, and he underwent treatment as an inpatient in that hospital from 14.07.2007 to 16.07.2007 and then he was admitted in Prashanth Hospital, Tirupati on 16.07.2007. The claimant also underwent surgery on 18.07.2007 and was discharged on 27.07.2007. He sustained fracture of femoral condyler, fracture head of fibula besides other injuries. His specific case is that because of fracture of right knee he is not in a position to walk long distances without the support of hand stick. He is also not in a position to stand long time and able to squat and also not able to use Indian toilets. It is also his case that he is limping and his right leg is shortened. He has not attended to his duties for more than 118 days and thereby he lost his salary for those days. He became permanently disabled. It is his case that he had spent Rs.40,000/- towards medical expenses. It is also his case that he had taken leave for a period of 336 days and thereby he had lost his leave credit and salary. Thus, he claimed total compensation of Rs.4,00,000/-. The first respondent is the owner of the luggage auto, which was insured with the second respondent-insurance company. The first respondent remained ex parte. The insurance company filed a counter and denied the material averments made by the claimant. It is also their case that the luggage auto driver was not negligent in driving the auto. Their further specific case is that the driver of the luggage auto had no valid driving licence at the time of accident to drive the type of the vehicle involved in the accident and therefore the insurance company is not liable to indemnify the first respondent. It is also their case that the claim of the claimant is excessive and exorbitant. The Tribunal framed the following issues. 1. Whether the pleaded accident occurred and if so was it due to fault of the driver of luggage auto bearing Regn.No.AP 03 W 5641 of 1st respondent? 2. Whether the luggage auto in question belongs to the 1st respondent and stood insured with the 2nd respondent/Insurance Company by the date of the accident and if so, whether policy covers the risk of the petitioner? 3. Whether the petitioner suffered injuries and entitled to compensation and if so, to what amount and from which of the respondents/ 4. To what relief? On behalf of the claimant, the claimant himself was examined as PW.1 and Dr. Sunanda Kumar Reddy was examined as PW.2 and one Srinivasulu was examined as PW.3 and Exs.A1 to A12 were marked. On behalf of the respondents RWs.1 and 2 were examined and copy of policy was marked as Ex.B1 and Exs.X1 to X5 were also marked. The Tribunal, on appreciation of oral and documentary evidence, came to the conclusion that the accident occurred on account of negligence of the driver of the luggage auto. On the issue of quantum, the Tribunal assessed the loss of salary at Rs.1,98,204/- and Rs.20,000/- towards inconvenience and discomfort, Rs.32,000/- towards pain and suffering, Rs.34,066/- towards medicines and treatment and Rs.25,000/- towards future medical expenses and thus awarded total compensation of Rs.3,09,270/-. Relying on the judgments of National Insurance Co.Ltd., v. Swaran Singh[1], and Oriental Insurance Co. Ltd., v. Angad Kol[2], the Tribunal directed the insurance company to pay compensation to the claimant and then recover the same from the first respondent. Relying on the judgment in B. Anandhi v. R. Latha[3], the Tribunal held that though the injured received leave salary for the leave period, he is entitled to compensation for the loss of leave. Sri T. Mahender Rao, learned counsel for the insurance company, has submitted that under Section 3 of the Motor Vehicles Act, 1988, it is obligatory on the part of the owner of the vehicle to verify whether the driver is holding effective driving licence for the type of the vehicle which he was driving. It is also his submission that when there is a violation of conditions of the policy, the insurance company can avoid its liability when it is proved that the vehicle was driven by a person who is not duly licenced under Section 149(2) of the M.V. Act. His main submission is that the decision in Swaran Singh’s case (1 supra) is not applicable to the facts of the present case and there is no mandatory direction to the Tribunal and Courts to invariably direct the insurance companies to pay the amounts at the first instance and then recover the same from the owner of the offending vehicle, even though they are held not liable. It is also his submission that the apex Court while exercising powers under Articles 142 and 132 of the Constitution of India directed the insurance companies to pay compensation amount at first instance and realize the same from the owner of the vehicle in some cases but this Court and the Tribunals have no such power. It is also his submission that the rights of the insurance company under Section 149(2) of the MV Act may not be defeated by interpreting sub-sections (4) and (5) of Section 149 of the M.V. Act in a manner which will result in giving benefit by one hand and withdrawing it by other hand, otherwise Section 149(2) becomes superfluous if interpreted otherwise. In support of his contention, he relied on a decision reported in Bajaj Allianz General insurance Co. Ltd. v. Kamalbay[4]. It is also his submission that when the Tribunal has found that the insured has violated the terms and conditions of the policy, the Tribunal has no power to issue directions to the insurance company to pay compensation at first instance and then to recover the same under Section 168 of the MV Act. Sri P. Govinda Reddy, learned counsel for the first respondent- claimant, submitted that the decisions relied on by the learned counsel for the insurance company are not applicable to the facts of the present case, since it is not a case of fake license. It is further submitted that the decision relied on by the learned counsel for the insurance company in case New India Assurance Co. Ltd., Tirupati v. G. Sampoorna[5], is also not applicable to the facts of this case, since in that case there was no valid driving license on the date of accident as there was no renewal of licence. His main submission is that in this case the driver was having valid driving license to drive light motor vehicle. It is his main submission that in National Insurance Co. Ltd. v. Annappa Irappa Nesaria[6], after referring to relevant provisions held that the light motor vehicle defined under Section 2(21) of the Act, includes a light transport vehicle and therefore a driver who had a valid licence to drive light motor vehicle therefore was authorized to drive light goods vehicle as well. He has also relied on a decision reported i n Oriental Insurance Co. Ltd., Nizamabad v. Mamidi Radha[7], wherein it was held that a light motor vehicle is also a transport vehicle. He has also relied on a decision reported in P.T. Moidu v. Oriental Insurance Co.Ltd.[8], in support of his contention that there should be a specific pleading by the insurance company that the insured knowingly entrusted the vehicle to a driver who had no valid driving license. He has also relied on a decision reported in K. Sathyanarayana v. Vijayalaxmi[9]. In that case the Tribunal basing on the report submitted by a private investigating agency that the license of the driver of the vehicle involved in that case had expired on 19.01.1990 relieved the insurer from liability to pay compensation. This Court held that the approach of the Tribunal was totally untenable. When the main dispute is whether the driver of the auto had valid licence or not, the only person, who could have spoken about it, was the driver himself. The verification of the records of the Regional Transport Authority, Secunderabad, that too, with the medium of private investigating agency, is totally irrelevant for the said purpose. It is not as if that office alone is competent to issue licences for everyone in the State. In every district there are licensing authorities, and in some districts, more than one. Had the 2nd respondent taken steps to secure the presence of the driver and elicited necessary information as to the existence of licence, it would have helped the Insurance Company. No such efforts were made by the 2nd respondent Insurance Company, therefore it cannot be relieved from its obligation, on the strength of such inadmissible, irrelevant and unrelated evidence. He has also relied on a decision reported in Depot Manager, APSRTC, Khammam v. Rama Ramulu[10], the judgment of this Court in 1997(2) ALD 535, in support of his contention that liberal approach should be adopted by the Tribunal while assessing compensation. As far as the salary for leave period is concerned, he has relied on a decision reported in B. Anandhi V. R Latha (3 supra), wherein the Hon’ble Madras High Court held that wherein a case injured remained on leave for four months and received leave salary for that period he is entitled for compensation for loss of leave during that period. The points that arise for consideration are whether the light motor vehicle includes light motor transport vehicle and whether the claimant is not entitled to the compensation for the period of leave when he received salary from the department in which he was working. Section 3 of the M.V. Act is as follows. 3. Necessity for driving licence:- (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do. Thus, it is clear that the driver who possessed the driving license to drive the vehicle of the type which he is driving should drive the vehicle. The apex Court in Swaran Singh’s case observed that the breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of licence or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not themselves defences available to the insurer against either the insured or the third parties. The insurance companies to avoid their liability must not only establish the available defence(s) raised in the concerned proceedings but must also establish 'breach' on the part of the owner of the vehicle; for which the burden of proof rests with it. The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. It was further observed that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The apex Court in case between National Insurance Co. Ltd. v. Annappa Irappa Nesaria (6 supra) observed that a driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well. In para 11 of the said judgment, it was observed as follows. “11. Section 2(21) defines ‘light motor vehicle’ and Section 2(23) defines ‘medium goods vehicle’ as under: “Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms.” “Medium goods vehicle means any goods carriage other than a light motor vehicle or a heavy goods vehicle.” In para 15 of the said judgment, the apex Court observed as follows. “15. ‘Light Motor Vehicle’ is defined in Section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle.” Thus, it is clear that a driver who had a valid license to drive a motor vehicle therefore authorized to drive the light goods vehicle as well. This Court also considered the same issue in case between Oriental Insurance Co. Ltd., Nizamabad v. Mamidi Radha (7 supra), wherein it was observed as follows. “In view of the fact that the driver of the auto in this case has a licence to drive light motor vehicles also apart from auto rickshaw even by the date of accident, question whether an auto-rickshaw becomes a transport vehicle within the meaning of Section 2(47) of the Act or not may not be of much consequence because ‘light motor vehicle’ also is a transport vehicle.” Admittedly, in this case the driver of the luggage auto was holding driving licence to drive light motor vehicle. In view of the fact that the driver was holding valid diving license, there is no need to discuss the above decisions cited by the learned counsel for Insurance Company. Coming to the next point whether the Tribunal was justified in awarding Rs.1,98,204/- towards loss of salary for a period of 366 days, when the claimant was paid his salary i.e., full pay medical leave for a period of 178 days. It is settled law that though the injured was paid salary for the medical leave period, he will be entitled to the compensation towards pecuniary loss, as held by the Madras High Court in B. Anandhi v. R. Latha (3 supra), which is as follows. “Because of the injury sustained by him in the accident, the claimant had to be on leave for a period of four months for taking treatment. So, he was constrained to apply for leave because of this accident and the fact that he received salary for this period is not a ground to contend that the petitioner is not entitled to get compensation for loss of earning for this period. Accordingly, we confirm the award passed by the Tribunal in this aspect.” In view of the above discussion, I am of the considered view that there is no substance in the contention of the learned counsel for the insurance company. The appeal is devoid of merit and the same is liable to be dismissed. Accordingly, the MACMA is dismissed. However, in the circumstances, no costs. ____________________ B. CHANDRA KUMAR, J. Date: 30th April 2011 Nsr [1] 2004 ACJ 1 [2] 2009 ACJ 1411 [3] 2002 ACJ 233 [4] 2010 ACJ 858 [5] 2010(5) ALT 105 [6] 2008(3) ALD 7 (SC) [7] 2008(6) ALD 562 [8] 2009 ACJ 1104 [9] 2010 (2) ALT 34 [10] 1997(2) ALD 535