IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD TUESDAY, THE ELEVENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.732 OF 2009 Between: United India Insurance Company Limited, Rep. by its Divisional Manager, Srikakulam Town. …Appellant A n d Vargiparthi Neelamma and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.732 OF 2009 JUDGMENT: This appeal is directed against the order dated 24.05.2006 in M.V.O.P.No.584 of 2001, on the file of the Motor Accidents Claims Tribunal, (I-Additional District Judge), Srikakulam, wherein the said claim application filed by respondents 1 to 3 herein was allowed-in-part, awarding compensation of Rs.1,46,800/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. Respondents 1 to 3 herein filed claim application seeking compensation of Rs.2,50,000/- for the death of the deceased Vargiparthi Sanyasi, who died in a motor vehicle accident that occurred on 15.03.1999. The 1st claimant is the wife and claimants 2 and 3 are the minor son and daughter of the deceased. According to the claimants, on that day, the deceased was proceeding towards bus stop at Narsapuram junction and that a jeep bearing No.GTS 9341, driven in a rash and negligent manner by its driver, dashed against the deceased, resulting in multiple injuries, including head injury, and the deceased died while undergoing treatment in hospital. The claimants further pleaded that the deceased was aged 35 years and was doing business in pigs and earning Rs.3,000/- to Rs.4,000/- per month. A case in Cr.No.21 of 1990 was registered against the driver of the jeep and subsequently after investigation, the police filed charge sheet against him and the same was taken cognizance in C.C.No.105 of 1999. on the file of the Judicial Magistrate of the First Class, Rajam. 4. The owner of the vehicle and insurer filed counters opposing the claim and denying their liability to pay the compensation. 5. During enquiry, P.W.1 was examined and Exs.A-1 to A-4 were marked on behalf of the claimant. R.W.1 was examined and Exs.B-1 and B-2 were marked on behalf of the insurer. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the jeep by its driver. The said finding is not seriously challenged in this appeal. Even otherwise, the evidence on record, particularly Ex.A- 4-charge sheet would show that the accident occurred due to the rash and negligent driving of the jeep by its driver, resulting in death of the deceased. The non- examination of any eyewitness to the occurrence is not fatal to the case of the claimants, when the other evidence available on record duly established the accident and the cause of the accident. The Tribunal has taken the income of the deceased at Rs.40/- per day, which comes to Rs.1,200/- per month, which is reasonable. Deducting one-third thereof towards personal expenses, his contribution to the family was taken at Rs.800/- per month, which comes to Rs.9,600/- per annum, and applying the multiplier ‘13’ arrived at a sum of Rs.1,24,800/- towards loss of dependency. The Tribunal further awarded Rs.15,000/- towards loss of consortium and Rs.2,000/- towards funeral and transport expenses and Rs.5,000/- towards loss of estate. As per the recent decision of the Apex Court in SARLA VERMA & OTHERS V. DELHI TRANSPORT CORPORATION[1], the 1st claimant would be entitled for Rs.10,000/- towards loss of consortium and the claimants would be entitled to Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses, which comes to Rs.20,000/-. The claimants are, therefore, held entitled for a total compensation of Rs.1,44,800/-. The claimants are, however, entitled for interest at 6% per annum from the date of petition, but not 7.5% per annum as awarded by the Tribunal. 7. The main contention of the learned counsel for the appellant is that the driver of the vehicle was not having valid driving licence as on the date of accident. According to the appellant, the driver was having only non-transport vehicle licence as on the date of the accident that took place on 15.03.1999 and it was only subsequently that he got the light transport vehicle licence from 16.03.1999 onwards. In support of the said contention, the appellant seeks to rely upon the endorsement Ex.B-2 said to have been given by the Additional Licencing Authority of Srikakulam. Except marking Ex.B-1, the appellant has not taken any steps to prove the contents thereof by examining the licencing authority concerned. In the absence of any such evidence, the contents of Ex.B-1 remained unproved and, therefore, no reliance can be placed on the said document. Admittedly, the driver was having a licence to drive the non-transport vehicle. It is not as though the driver was not having the licence at all. The contention of the appellant is that there has been breach of terms and conditions of the policy on the part of the owner of the vehicle as he allowed the vehicle to be driven by a person not having valid and effective driving licence. 8. I n NATIONAL INSURANCE COMPANY LIMITED V. SWARAN SINGH AND OTHERS[2], the Apex Court held as follows: “Mere absence 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 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 conditions of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time.” 9. In NATIONAL INSURANCE CORPORATION LTD. V. KANTI DEVI[3], the Apex Court held as follows: “Obviously, defence can be raised by the insurer about the licence being fake. By analogy, the insurer can also take a defence that the driver did not have the requisite driving licence to drive a particular type of vehicle. Such defence can be raised and it will be for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. The effect of the evidence in this regard has to be considered by the concerned Tribunal.” As per the above decision, it is for the insurer to prove that the insured did not take adequate care and caution to verify genuineness or otherwise of the licence held by the driver. 10. In the present case, there is absolutely no evidence on record to show that the insured failed to take adequate care and caution and consciously violated the terms and conditions of the policy by entrusting the vehicle to a person, having no valid and effective driving licence. The above decision makes reference to the decision of the Apex Court in Swaran Singh[4]’s case (2 supra) wherein it was held as follows: “..…In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence." 11. In the present case, there is nothing on record to show that the accident was caused solely because the driver was not having licence to drive the non-transport vehicle and that there was any nexus between the accident and the driver not possessing the requisite type of licence. When that is so, the insurer cannot avoid its liability, even if there is any technical breach of conditions concerning the driving licence, as held by the Apex court in Swaran Singh’s case (2 supra). 12. In the present case also, there is nothing on record to show that the owner of the vehicle willfully or consciously violated the terms and conditions of the policy by entrusting the vehicle to a person, having no valid driving licence. Having regard to the fact that the Act is a beneficial piece of legislation and the provisions relating to payment of compensation are having purpose and objective of providing succour and support to innocent victims of the accident, breach of terms and conditions of the policy on the part of the owner cannot be readily inferred, in the absence of evidence to that effect by the party, namely insurer, alleging such breach and violation so as to exonerate the insurer from liability to pay the compensation and thereby defeat the claim of the victims. It is true that the nature of obligation of the insurer to indemnify the insured is contractual and is guided by the terms and conditions of the contract, namely policy. When the insurer seeks to avoid its liability on the ground that there has been violation of the terms and conditions of the policy, the same has to be specifically pleaded and proved, as held by the Apex Court in the case of Swaran Singh’s (2 supra). It is only when the insurer is able to establish that there has been a conscious violation of the terms and conditions of the policy on the part of the owner, the insurer can seek to avoid its liability but not otherwise. 13. As the driver was having admittedly a licence to drive the non-transport vehicle and the endorsement Ex.B-2 said to have been issued by additional licencing authority not having been proved in accordance with law, it cannot be said that there has been any conscious violation of the terms and conditions of the policy on the part of the owner of the vehicle that could enable the insurer to avoid the liability to pay the compensation. 14. In the circumstances, it is held that the appellant- insurer has failed to establish that there was any breach or violation of the terms and conditions of the policy and, therefore, they are not liable to indemnify the owner of the vehicle. The impugned order fixing joint and several liability on the appellant/insurer for the amount of compensation is, therefore, held not liable to be interfered with. The claimants are, however, entitled for a total compensation of Rs.1,44,800/- with interest at 6% per annum from the date of petition. The impugned order is modified accordingly. 15. Subject to the above modification, the appeal is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 11th October, 2011 Lrkm. [1] 2009(3) ALD 83 (SC) [2] AIR 2005 SC 2850 [3] 2005(3) ALT 35 (SC) [4] (2004) 3 SCC 297