HON’BLE SRI JUSTICE K.S.APPA RAO M.A.C.M.A.No.299 of 2008 Date: 10-6-2011 Between The New India Assurance Co. Ltd., Rep. by its Branch Manager, 4-12-18, Mandapeta, Opp: Head Post Office, Anakapalle, Visakhapatnam … Appellant/Respondent No.3 and Smt. Melipaka Atchiyamma and 2 others … Respondents/Petitioners Bikkavolu Chiranjeevi and another … Respondents/Respondents 1 and 2 HON’BLE SRI JUSTICE K.S.APPA RAO M.A.C.M.A.No.299 of 2008 Judgment: Heard both sides. 2. Being aggrieved by the order and decree dated 19-9-2007 in M.O.P.No.218 of 2005 on the file of the II Additional District Judge cum Chairman, Motor Accident Claims Tribunal, Visakhapatnam the present civil miscellaneous appeal is filed. 3. The appellant herein is the 3rd respondent in M.O.P.No.218 of 2005. The learned Standing Counsel for the appellant-Insurance Company mainly urged that the tribunal below fastened the liability against the 3rd respondent-Insurance Company though there are violation of policy conditions and that the driver of the offending vehicle had no valid driving licence. Hence, the order of the tribunal below is not sustainable. 4. The learned counsel for the respondents 1 to 3-claimants draws the attention of the Court by placing reliance on a judgment in Kusum Lata v. Satbir[1] and urged that the finding of the tribunal below is sustainable and if at all the driver of the offending vehicle had no valid driving licence, the Insurance Company should indemnify the compensation payable on behalf of the owner of the offending vehicle and thereafter recover the same from the owner and therefore, the Insurance Company should not evade to pay the compensation to the petitioners. 5. Now, the point for consideration is -- whether the order of the tribunal below is sustainable ? 6. Point:- As seen from the impugned order, on behalf of the petitioners, P.W.1 was examined and Exs.A-1 to A-6 were marked and on behalf of the 3rd respondent-Insurance Company R.W.1 was examined and Exs.B-1 and B-2 were marked. 7. The contention raised by the learned Standing Counsel for the appellant-Insurance Company is that there are clear violations of the terms and conditions of the insurance policy and also the driver of the offending vehicle overloaded the auto and thereby he could not control the auto and caused the accident. 8. The factum of the accident was not disputed. It is the specific case of the appellant-Insurance Company that the driver of the offending vehicle had no valid driving licence at the time of accident. The Insurance Company did not examine any witnesses in discharging its burden to show that the driver of the offending vehicle had no valid driving licence at the time of accident. As seen from the averments in Ex.A-5 charge-sheet and Ex.B-2 Motor Vehicles Inspector’s Report, the factum of non-possession of driving licence by the driver of the offending auto is noted. Therefore, while applying the principle laid down in the aforesaid judgment in Kusum Lata‘s case (1 supra), the Insurance Company in the first instance should indemnify the compensation payable to the petitioners and thereafter can recover the same from the owner of the vehicle as per the guidelines laid down in Oriental Insurance Co. Ltd. v. Nanjappan[2]. 9. With this modification, the civil miscellaneous appeal is allowed. The other findings regarding the quantum of compensation as held by the tribunal below are sustainable. No costs. ___________________ K.S.APPA RAO, J. 10th June, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO M.A.C.M.A.No.299 of 2008 10th June, 2011. [1] 2011 ACJ 926 [2] 2004 ACJ 721