1. This appeal is by the insurer, questioning the liability fastened on it to pay the compensation awarded by the 1st Additional Judge and Motor Accident Claims Tribunal, (SCCH-11) Bangalore, in MVC. No.1389/2006, dated 22.03.2007.

2. The respondents-1 to 3 are the wife, mother and daughter of deceased Sabanna, who died in a motor accident that occurred on 17.07.2005, involving autorickshaw bearing No.KA-11/3025. During the enquiry before the Tribunal, the claimant-respondents have established the factum of occurrence of accident, involvement of the offending vehicle-autorickshaw bearing No.KA-11/3025, rash and negligent driving of its rider, the insurance coverage of the said vehicle with the insurer, the appellant herein. Therefore, this court need not look into the said aspects, inasmuch as, the same has remained unchallenged.

3. Learned Counsel for the appellant vehemently contended that, as on the date of accident, the driver of the offending vehicle had no valid licence to drive the said vehicle, as the licence (Ex.R.1) was valid only for the period from 25.04.1991 to 23.04.1994. Further the contended that, only with a view to fasten liability on the appellant, the owner of the offending vehicle has not contended the case before the Tribunal and therefore, he contended that, the insurer has the right to take a defence, as contemplated under section 149 (2) (a) (ii) of the Act. Secondly she contended that, there was a violation of permit by the owner of the vehicle, inasmuch as, he has permitted to carry more passengers than permitted and therefore, the Tribunal was not justified in fastening the liability on the appellant to indemnify the appellant to pay the compensation awarded and therefore, the impugned award is liable to be set aside.

4. On the other hand, learned counsel for the respondents-1 to 3 submitted that, the claimants being third parties, in a claim petition filed under section-163-A of the Motor Vehicle Act 1988 (hereinafter referred to as ‘the Act’ for short), they are not required to prove, as to whether the driver of the offending vehicle did possess the valid licence or not on the date of accident and such burden is wholly lies on the owner and insurer of the vehicle and not on the claimants. Further he contended that, the claimants requires to plead and establish the factum of occurrence of accident, actionable negligence on the part of the rider/driver of the offending vehicle and in such circumstances, the insurer had an opportunity to pay the compensation awarded and thereafter, to recover the same from the owner of the vehicle. Therefore, the Tribunal was justified in fastening liability on the appellant.

5. A perusal of the records it is seen that, though it is the contention of the appellant that, the licence held by driver of the offending vehicle had lapsed, and he did not possess valid licence to drive the vehicle, as on the date of accident. That itself is not a proof that he was disqualified from driving the vehicle or he was completely denuded from driving the vehicle, as the driver had a licence and there is not evidence as to whether the driver did not get it renewed or got fresh licence. In such circumstances, unless the insurer prays that the driver was not at all having the licence to drive, it is to appreciate the contention of the insurer. Added to this, it now well settled law, as has been held by the Hon’ble Supreme Court in Oriental Insurance Company - vs – Zaharuinisha and others (2008 AIR SCW-3251) that, the liability of the insurer in respect of the risk of third party would be deemed to be a judgment debtor in respect of its liability and violation of provisions of Section 149 (4) (5) of the Act may result in absolving insurers, but same may not necessarily hold good in case of third party and that, liability of insurer to satisfy the decree passed in favour of third party is statutory. The exception applies only to acts done intentionally or so recklessly as