IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTIETH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.1204 OF 2007 BETWEEN United India Insurance Co. Ltd. …APPELLANT AND Shaik Praveen and four others. …RESPONDENTS Counsel for the Appellant: Mr. A.V.S.K. PRASAD Counsel for the Respondents: Mr. A. JAYASANKAR REDDY The Court made the following: - JUDGMENT: This is an appeal by the insurance company questioning the finding of the tribunal that notwithstanding the violation of the condition of policy the insurance company is liable. 2. The claimants preferred O.P.No.320 of 2005 before the Motor Accidents Claims Tribunal – cum – III Additional District Judge, Kurnool at Nandyal. 3. In view of the short point involved it is not necessary to go into the details of the claim and the evidence on record. Suffice it to state that the accident was caused on account of the rash and negligent use of the offending vehicle, which was tractor and trailor driver by the driver of the first respondent. As per the evidence on record i.e. R.W.1 examined on behalf of the insurance company, the offending vehicle being tractor and trailor, it cannot be treated as Light Motor Vehicle (LMV) and it is not in dispute that the driver of the first respondent possessed only the licence to drive LMV. 4. Based on the above, the learned counsel for the appellant submits that it has to be held that there is a violation of the policy of insurance inasmuch as a driver having authorization to drive LMV cannot driver a tractor and trailor, which does not fall within the category of LMV, as the minimum weight exceeds 7,500 Kgs. The tribunal below, however, proceeded to think that as long as the driver was having a valid driving licence there is no violation of the policy of insurance and accordingly held insurance company liable. Learned counsel for the appellant, therefore, submits that in the event of the appellant establishing that the licence held by the driver of the first respondent would not authorize him to drive the offending tractor and trailor, the liability imposed on the appellant would be wholly unjustified and for that reason he seeks an opportunity to enable the appellant to establish the same. Learned counsel, however, placed reliance on two decisions of the Supreme Court in NATIONAL INSURANCE CO. LTD v. KUSUM RAI[1] and NATIONAL INSURANCE CO. LTD v. KAUSHALYA DEVI[2] for the proposition that the insurance company is not liable. 5. In view of the decision of the Supreme Court in KUSUM RAI’s case (1 supra) the said aspect would not permit the appellant – insurance company to avoid payment of compensation to the claimants, in either of the situations as to whether the insurance company is held liable or not. Following the aforesaid decision it would be appropriate to direct the appellant to pay the compensation to the claimants, as determined by the tribunal below. However, such payment shall be subject to the appellant – insurance company establishing before the executing Court i.e. the claims tribunal in proper proceedings that there is violation of the driving licence of the first respondent and subject to establishing the same, the insurance company shall be entitled to recover the amounts paid by it, except the amounts covered under Section 140 of the Motor Vehicles Act, 1988, from the owner of the offending vehicle. Subject to the above, the civil miscellaneous appeal is dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 20, 2010 DSK [1] (2006) 4 SCC 250 [2] AIR 2008 SC 2252 = 2008 SCJ 779