HONOURABLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A. No. 5391 OF 2008. DATED 19TH AUGUST, 2010. BETWEEN United India Insurance Company Limited, Rep. By its Divisional Manager, Ramagundam, Karimangar …Appellant and Gollapally Vijaya Laxmi @ G.vijaya …Respondents. HONOURABLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A. No. 5391 OF 2008. JUDGMENT: This Civil Miscellaneous Appeal under Section 173 of the M.V. Act is ﬁled by the United India Insurance company Limited aggrieved over the Award dated 10.04.2008 passed in O.P. No. 328 of 2006 on the ﬁle of the Motor Accidents Claims Tribunal-cum-District Judge, Karimnagar. The aforesaid claim petition was ﬁled by the claimant on account of injures suﬀered by her in a motor vehicle accident that took place on 12.3.2005. It was averred in the claim petition that while the claimant along with her neighbour, Ramagiri Thara @ Tharabai were proceeding on morning walk on 12.3.2005 from Bellampalli cross-roads towards Inspection bunglow and when they reached Hanmantharao Petrol bunk, a maruthi van bearing No.AP.01.K.6481 being driven by its driver in rash and negligent manner, at high speed, dashed both ladies, as a result of which, Tharabai succumbed to injuries and the claimant suﬀered severe head injury called acute subdural hematoma internal contusion. The claimant suﬀered partial permanent disability in her left limbs. Hence, she ﬁled the aforesaid claim petition claiming compensation of Rs.10,000/-. Before the tribunal, the owner of the crime vehicle remained ex parte. The Insurance Company contested the matter by ﬁling counter, wherein it denied all the averments made in the claim petitin. Based on the pleadings, the Tribunal framed the issues for settlement. In order to prove the claim, on behalf of the claimant, P.Ws. 1 to 6 were examined and Exs.A.1 to 25 were marked. On behalf of the Insurance Company, R.W.1 was examined and Exs.B.1 to B.4 were marked. The Tribunal on a consideration of the oral and documentary evidence, came to the conclusion that the accident occurred due to the rash and negligent driving of the crime vehicle by its driver. Then proceeding to assess the compensation, the Tribunal awarded total compensation of Rs.4,08,900/- with proportionate casts and simple interest at 7.5% per annum. The only ground raised in this appeal by the learned Standing Counsel for the appellant-Insurance Company is that the Tribunal ought to have seen that the Insurance company is not liable to pay any compensation inasmuch as the driver was not having valid driving licence at the relevant time of accident. The learned Counsel contended that before entrusting the vehicle, it is the responsibility of the owner to see that the driver is having valid driving licence and that when the driver and owner of the crime vehicle did not contest the matter, the Tribunal ought to have held that the appellant company is deemed to have proved that the driver had not valid driving lience at the relevant point of time. Per contra, the learned Counsel appearing for the ﬁrst respondent contend that the Award of the Tribunal is based on the material available on record and as well as the decisions of the Apex Court and other High Courts. She further contended that there are not grounds to interfere with the same. She further contended that the breach of policy condition i.e. not possessing valid driving licence at the relevant period, have to be proved to have been committed by the insured for avoiding liability by the insurer. She also contended that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulﬁlling the condition of the policy regarding use of vehicles by duly licensed driver. In support of her contentions, she also placed reliance on the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Swaran Singh (2004 AIR SCW 663) Heard the learned Counsel appearing on either side. Perused the record. The contentions, which are raised before this Court by the learned Counsel for the appellant-Insurance Company were already raised before the Tribunal and they were answered by the Tribunal in negative. It is settled law that the this Court being an appellate Court can interfere with a ﬁnding of fact recorded by the primary authority only when the same is not based on evidence or insuﬃcient evidence. In this case it is not a case of the appellant that the ﬁndings of the Tribunal are not based on evidence. There is no dispute with regard to quantum of compensation awarded by the Tribunal. Hence, there is no need to probe into the said issue. Before the Tribunal, the appellant-Insurance Company though raised a plea that the second respondent herein was not holding eﬀective driving licence as on the date of accident, but it did not take any steps to summon the owner and driver and examine them with regard to the driving licence particulars of the driver nor it applied to any particular Regional Trasnsport authority to obtain the driving licence particulars of the driver-second respondent herein. Having observed so, the Tribunal held that there is no speciﬁc plea in the counter of the appellant-Insurance Company and no cogent proof regarding the driving licence of the driver (second respondent) and therefore, Insurance company is also liable along with other respondents. In the decision sought to be relied on by the learned Counsel for the ﬁrst respondent in the case of National Insurance Company Limited Vs. Swaran Singh (2004 AIRSCW 663), the Apex Court discussed the similar issue exhaustively in its judgment and held at Para 105 as follows: “Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition ﬁled under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition e.g. disqualiﬁcation of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualiﬁcation of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulﬁlling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time @page-SC1558 (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v) 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 circumstances of each case. (vi) 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 Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to ﬁnd out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Sections 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certiﬁcate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears as land revenue. The certiﬁcate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi)The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover speciﬁed contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” As discussed earlier, the appellant- Insurance Company though raised a plea before the Tribunal, that the second respondent herein was not holding eﬀective driving licence as on the date of accident, but it did not take any steps to summon the owner and driver and examine them with regard to the driving licence particulars of the driver nor it applied to any particular RT authority to obtain the driving licence particulars of the driver-second respondent herein. In that view of the matter, the Tribunal held that there is no speciﬁc or cogent proof regarding the driving licence of the driver (second respondent) and therefore, Insurance company is also liable along with other respondents. In view of the foregoing discussion and the decision of the Apex Court referred to supra, I do not see any merit in this appeal so as to interfere with the Award of the Tribunal. The Civil Miscellaneous Appeal is dismissed. No order as to costs. ------------------------------------------------- JUSTICE GHULAM MOHAMMED 19th August, 2010. Msnr.