Owner of the vehicle knowingly entrusted the vehicle to the auto driver who had no valid licence.

Challenging the Award dated 24.11.2008 in O.P.No.270 of 2003 passed by the Chairman, M.A.C.T-cum-V Additional District Judge, Nellore (for short the Tribunal), R2/Insurance Company preferred the instant appeal.

2) The factual matrix of the case is thus:

a) The case of the claimant is that on 15.05.2002 at about 10:30 AM, when he was proceeding on his Bajaj Chetak scooter bearing No. AP 26D 5806 and after crossing East Cabin Booking Office at Nellore, one auto bearing No. AP 26 U 1146 being driven by its driver at high speed and in a rash and negligent manner, came in the wrong side and dashed the scooter of the claimant. Thereby, the claimant fell down and sustained grievous injuries. Immediately he was taken to the Government Hospital, Nellore, later he was shifted to private hospital for better treatment. It is averred that the accident was occurred due to the rash and negligent driving by the driver of auto. On these pleas, the claimant filed O.P.No.270 of 2003 against respondents 1 and 2, who are owner and insurer of the offending auto and claimed Rs.1,00,000/- as compensation under different heads mentioned in the O.P.

b) Respondent No.1 remained ex parte.

c) Respondent No.2 filed counter and opposed the material averments made in the O.P and urged to put the claimants in strict proof of the same. R2 denied the policy and contended that the driver had no valid driving licence. It further contended that the compensation claimed is highly excessive and untenable and thus prayed to dismiss the OP.

d) During trial P.Ws.1 and 2 were examined and Exs.A1 to A12 and Ex.C1 were marked on behalf of claimant. R.Ws.1 and 2 were examined and Exs.B1 and B2 were marked on behalf of respondents.

e) A perusal of the Award would show that the Tribunal having relied upon the oral evidence of PW.1 coupled with Ex.A1FIR, Ex.A2wound certificate and Ex.A3charge sheet held that the accident was occurred due to the rash and negligent driving by the driver of the offending auto.

f) Issue No.2 which relates to quantum of compensation, the Tribunal awarded compensation of Rs.75,000/- together with proportionate costs and interest at 7.5% p.a from the date of O.P till the date of realization under different heads as below:

For grievous injuries Rs.30,000/-

Partial disability Rs.10,000/-

Pain and suffering Rs.10,000/-

Medical expenses Rs.20,000/-

Transportation and attendant charges Rs.5,000/-

Total Rs.75,000/-

Hence, the appeal by the Insurance Company questioning the quantum of compensation.

3) Heard Sri K.Sitaram, learned counsel for appellant/Insurance Company and Sri M.S.R. Chandra Murthy, learned counsel for R1/claimant. Respondent No.2/ owner of the auto remained ex parte before the Tribunal. Hence the matter is heard.

4) Learned counsel for appellant challenged the award mainly on the ground that the driver of the auto had no valid driving license by the date of accident i.e., he was only holding license to drive non-transport vehicles whereas the auto in question is a transport vehicle and hence for violation of terms of the policy, the Insurance Company is not liable for the claim of the claimant. Learned counsel argued that the Tribunal has not at all appreciated this contention and not discussed the same in its award. He thus, prayed to allow the appeal.

5) Per contra, opposing the appeal, learned counsel for the respondent/ claimant argued that the Insurance Company only took the plea in its counter that the driver of the auto had no valid and effective driving license and of course through Ex.B2driving license extract, had established that the auto driver had license to drive only non-transport vehicles but not the transport vehicles. However, the Insurance Company has not taken plea in the counter that the owner of the auto committed breach of the terms of the contract by willfully entrusting the vehicle to auto driver. As such, the Insurance Company cannot avoid its liability as against the third party. At best, it may pay compensation and re