IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDEABAD Wednesday, the thirtieth day of June, 2010 Present: The Hon’ble Sri Justice P. Swaroop Reddy C.M.A.No. 1787 of 2003 Between The Oriental Insurance Co. Ltd. …Apellant/Respondent No.2 And Harijana Sanjamma and others …Respondents/Petitioners PSR, J. C.M.A.No. 1787 of 2003 Judgment This appeal is filed against the order of the learned Chairman, Motor Accidents Claims Tribunal—cum—Principal District Judge, Kurnool in M.V.O.P.No. 1029 of 2000. The insurance company is the appellant herein. 2. The facts of the case are as follows – According to the petitioners /respondent Nos. 1 to 6, on 26-2-2000 at about 3-00 PM, the deceased, Harijana Ramanna and six others were going to Dhanapuram village from their village, Attekal in Auto bearing No.AP-21-T-9489 for the marriage alliance of his daughter. At about 4.00 PM, when the Auto reached near Chigili bus-stand on Adoni – Pattikonda road, the driver of the Auto drove the Auto in a rash and negligent manner and in high speed, on account of which, the left rear tyre of the Auto burst and the driver lost control over the Auto. Consequently the Auto turned turtle and the occupants of the Auto fell down. The deceased sustained injuries and when he was being shifted to Adoni Hospital, he died. The deceased was aged 35 years and was earning Rs.70-00 per day by doing cooli work. The petitioners, being the legal representatives of the deceased, claimed compensation of Rs.2.50 Lakhs. 3. The first respondent – owner of the Auto remained ex parte. The second respondent-insurance company filed its counter denying the averments made in the petition. 4. On the basis of the above material, the following issues were settled for trial: i) Whether the accident that occurred on 26.2.2000 at about 4.00 PM, near Chigili bus-stage on Patikonda-Adoni road, which resulted in the death of Harijana Ramanna s/o Lakshmanna, was on account of the rash and negligent driving of the Auto bearing No. AP-21-T-9489? ii) Whether the petitioners are entitled for the claimed amount of Rs.2,50,000-00? If not, how much and against whom? iii) To what relief? 5. On behalf of the petitioners, PW-1 was examined and got marked Exs A-1 to A-4. On behalf of the respondents RW-1 was examined and Exs B-1 and B-2 were marked. 6. The appellant-insurance company filed the present appeal, predominantly questioning its liability, though the quantum of compensation awarded and the rate of interest are also questioned. 7. The deceased was aged 35 years and was working as cooli earning about Rs.50-00 a day. Taking into consideration, the number of dependents, who are six, and as there was possibility of his future earnings going up, relying on the decision of the Hon’ble Supreme Court Sarala Verma v. Delhi Transport Corporation[1], the quantum of compensation awarded cannot be said to be on high side. 8. The next question is whether the appellant-insurance company is liable. The contention of the appellant is that as there were more than six persons in the Auto, there is violation of the terms of the policy; as such the insurance company is not liable. RW-1, a witness examined on behalf of the insurance company, stated that the vehicle in question was insured with their company. It had the carrying capacity of six persons; but there were fifteen persons in the Auto at the time of the accident, in violation of the terms. Further as, the driver had no valid license, it is not liable to pay compensation. 9. The evidence of PW-1 is that there were only seven persons in the Auto including herself. She denied the suggestion that there were twelve persons in the Auto. The contents of Ex A-1 would disclose that apart from the complainant, the other five persons in the Auto received injuries. As such there is no material to show that there were fifteen persons in the Auto. There is no authentic evidence to show that the driver was not having valid driving license, though he possessed LMV driving license. No Rule is brought to my notice to say that Auto rickshaw comes under a different kind of vehicle. Moreover as observed by the Hon’ble Apex Court in Ashok Gangadhar Maratha v. Oriental Insurance Co.Ltd.[2] “ if the person driving the vehicle at the time of the accident authorized to drive only LMV and not transport vehicle, it cannot be said that the said driver is not having effective valid license and the insurer cannot escape liability on the ground of breach of policy by insured.” 10. With regard to the number of occupants in the Auto, at the time of the accident, there is some dispute. As per the evidence of PW-1, there were six persons in the Auto and all of them received injuries. Thus, it cannot be said that there was violation of terms of the Policy. 11. The learned counsel for the first respondent contends that even if there was violation of the terms of the policy; the appellant-insurance company is liable. In support of his Contention, the learned counsel relied on a decision of the Hon’ble Supreme Court in National Insurance Co. v. Anjana Shyam[3], wherein it was held that in case there were more occupants, the liability would be limited only to the number of passengers permitted to be carried in the vehicle. In the present case, there is no claim for more number of persons. Only the present petitioners have filed the claim petition. This court in National Insurance Co.Ltd. v. M. China Samba[4] took the similar view. 12. The Hon’ble Supreme Court in National Insurance Co.Ltd. v. Challa Bhaathamma[5] held that “plying of the vehicle without permit is infraction and the insurer need not indemnify the award of compensation. However, in view of the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. Executing Court shall pass appropriate orders in accordance with the law as to the manner in which the owner of the vehicle shall make payment to the insurer.” Thus it is made clear that the insurance company has to first pay the compensation and then recover from the owner. 13. In view of the decision of the Hon’ble Supreme Court relied on by the learned counsel for the respondent in National Insurance Co.Ltd. (2 supra), I am not inclined to accept that the petitioners are not entitled for compensation from the appellant and there is no question of the amount being paid by the insurance company and recover it from the second Respondent. Even if there were number of persons in the Auto, the claim is made for only one person and there was permit for six passengers for traveling in the Auto. In the circumstances, I see no merits in the appeal and the appeal is accordingly liable to be dismissed. 14. In the result, the appeal is dismissed. No costs. _______________________ P. SWAROOP REDDY, J. June 30, 2010. *BVS [1] 2009 ACJ 1298 [2] AIR 1999 SC 3181 [3] AIR 2007 SC 2870 [4] 2008 (2) ALD 455 [5] 2004 (1) Decisions Today (SC) 842