THE HON’BLE SRI JUSTICE K.S.APPA RAO C.M.A.No.623 of 2003 and C.M.A.No.958 of 2004 COMMON JUDGMENT: These two appeals are directed against the award in M.V.O.P No.573 of 1998 on the file of the Chairman, Motor Accidents Claims Tribunal-cum- Additional District Judge, Vizianagaram, dated 11.06.2001, and therefore they are heard together and are disposed by this common judgment. C.M.A.No.623 of 2003 is filed by the appellants for enhancement of compensation on the ground that the Tribunal granted a very meagre amount of compensation, though the deceased daughter of the appellants suffered para flazia and severe ailment which cannot be compensated in terms of money. C.M.A.No.958 of 2004 is filed by the National Insurance Company Limited, challenging the order of the Tribunal, urging that the compensation awarded is very high and that the Tribunal below failed to see that driver of the offending vehicle had no driving licence to drive heavy goods vehicle like the offending vehicle and it erred in holding that the appellant company is also liable to pay compensation. It is also further urged that 4th respondent, who is the owner of the offending lorry bearing No.ABW 3994, had violated the terms of the policy by allowing the 2nd respondent to drive the insured lorry at the time of accident, who had driving license only to drive the light motor vehicle, but not the offending vehicle, which is heavy goods vehicle, and therefore, the Tribunal ought to have held that the insurance company is not liable to pay compensation. There is no dispute regarding the manner in which the accident occurred. Hence, the only two points that arise for consideration is whether fixing of liability against the insurance company is justified and whether the amount of compensation awarded is just and reasonable? The counsel for the claimants mainly urged that insurance company had not taken any plea in the counter that the driver of the offending vehicle had no valid driving licence and that the owner of the said vehicle had knowledge for not having the valid driving licence of its driver and, therefore, the insurance company is now estopped to raise such a plea at this point of time and, therefore, the insurance company shall indemnify the compensation for not taking such plea in the beginning itself. It is also further urged that the Tribunal grossly erred in granting meagre compensation to the injured, which is erroneous. The counsel appearing for the insurance company while attacking the said arguments urged that insurance company had taken specific plea in the counter itself that the driver of the offending vehicle had no driving licence and the owner though aware of the factum of non-holding the valid driving liclence by its driver entrusted the vehicle to the driver resulting the owner held responsible to indemnify for the compensation in the insurance company. He also further urged that the owner of the offending vehicle was set ex parte in the Tribunal and therefore non-participation by the owner in the proceedings before the Tribunal itself clearly reveals that he had knowledge that the driver of the offending vehicle have no valid driving licence and having kept silent and not contested the matter before the Tribunal, now he cannot raise that plea. He also further urged even as on this day, the driver had not filed any appeal challenging the orders of the Tribunal. Therefore, he is estopped from taking any plea at this late hour, to circumvent his responsibility of his liability. The counsel for the insurance company also drawn my attention to the provisions of Section 3 and Section 5 and Second 134(c ) of M.V.Act and submitted that it is the duty of the owner of the vehicle to take all diligent steps before shifting his responsibility to the insurance company and in the present case, the owner failed to follow the mandatory provisions of the aforesaid sections. The counsel appearing for the claimant also draw our attention to the decision reported in National Insurance Company Limited., v Swaran Singh and others[1] case and finally urged that insurance company cannot absolve its responsibility for the laches of the owner of the offending vehicle and they should first pay the compensation to the claimants, and thereafter recover the same from the owner of the vehicle. In reply to this argument, the counsel for the insurance company placed reliance on the decision reported in New India Assurance Company Limited, Tirupati v G.Sampoorna and others[2] and urged that the insurer is entitled to avoid his liability if the driver is not holding a valid driving licence. As seen from the impugned order, it is noted at third paragraph that the respondent filed a counter stating that petition is not maintainable and that the petitioner has to strictly prove that the accident vehicle is insured with the respondent on the date of accident and it is covered by insurance and that the petitioner has to prove that the driver had valid driving licence, fitness certificate and that the owner had proper route permit at the time of the accident. Further, in the impugned order, the learned Judge, at para 12 of the judgment, clearly observed that R.W.1, who is working as Senior Assistant in RTA Office, Vizianagaram, in his evidence stated that the 1st respondent was having LMV (transport) driving licence and he was also issued badge No.1863 and that 1st respondent was not holding heavy goods vehicle driving licence and that accident vehicle is a lorry bearing No.ABW 3994 and is a heavy goods vehicle. In the impugned order, the learned Judge clearly observed that no doubt it is established by the Insurance Company that the 1st respondent got licence to drive only LMV (transport) and he has no licence to drive heavy goods vehicle like the accident vehicle. In view of the positive finding of the learned Judge in the impugned order that the driver of the offending vehicle had no valid driving licence to drive the heavy motor vehicle at the time of the accident, it can be safely said the driver had no valid driving licence on the date of accident. As stated already, the owner of the offending vehicle set ex parte in the Tribunal and he has not raised his little finger till he participated in the present CMA. He neither contested the matter before the Tribunal nor preferred any appeal challenging the order of the Tribunal by way of any C.M.A. At this late hour, now, he raised a plea that he had no knowledge about the driver of the offending vehicle not having valid driving licence at the time of the accident and, therefore, the liability cannot be fixed against him. In my view, the conduct of the owner of the vehicle at this late hour is only an after thought to evade his liability. All the time he kept quiet and now raised his voice stating that he is not responsible for the laches on the part of the driver of the offending vehicle, who was servant under him at the time of accident. In any view of the matter, his responsibility is not liable to be absolved, in view of the factum of admission that the driver was in his employment at the time of accident. Therefore, in any view of the matter, he is jointly and severally liable for the laches committed by his servant i.e., the driver of the offending vehicle at the time of the accident. As rightly argued by the learned counsel for the insurance company, while placing reliance on Section 3 of the Motor Vehicles Act, which reads about the necessity for driving licence as follows: ”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 authorising 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. 2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving motor vehicle shall be such as may be prescribed by the Central Government”. Section 5 clearly reads the responsibilities of the owner of the motor vehicles to adhere to the provisions of the Act. The owner in the instant case did not comply with the aforesaid three provisions which are mandatory in nature and which gives helping hand to the insurance company to take the recourse as per Rules, in a case which falls under the Motor Vehicles Act. Therefore, in any view of the matter, it cannot be said that the insurance company had not taken any diligence while submitting its counter at the first instance representing the facts and suggesting the claimants to discharge their burden in proving that the driver of the offending vehicle had no driving licence at the time of the accident. On the other hand, the insurance company while discharging their liability examined RWs 1 to 3 and proved that the driver of the offending vehicle had no valid driving licence at the time of accident. Viewed from any angle, in the totality of the circumstances, it cannot be said that the insurance company had not taken its defence at the initial stage. Further, the owner of the vehicle, for the reasons best known to him, kept silent and now raised the pleas, which, in my view, do not stand to the scrutiny by any stretch of imagination. Coming to the issue whether the amount of compensation awarded by the Tribunal is just and reasonable, as can be seen from the order under appeal, the Tribunal having regard to the fact that the deceased was minor at the time of accident and taking into consideration the oral and documentary evidence available on record, rightly awarded compensation of Rs.2,05,228/-, with which no interference is warranted. In the result, the appeal filed by the insurance company ie. C.M.A.No.958 of 2004 is allowed, setting aside the judgment of the Tribunal in O.P.No.573 of 1998 to the extent of fixing liability against the insurance company, while dismissing the C.M.A.No.623 of 2003. No order as to costs. In view of the findings recorded in the appeal filed by the insurance company, the liability to pay the compensation awarded by the Tribunal shall be fastened to the owner of the vehicle and if any amount is deposited by the insurance company, the same shall be repayable by the claimants and the claimants can prefer the remedies against the owner of the offending vehicle, if so, advised. K.S.APPA RAO,J 17th February, 2011 PNV [1] 2004(2) ALD 36(SC) [2] 2010(4) ALD 586