The main legal point established in the judgment is the application of the pay and recover principle under Section 66 of the Motor Vehicles Act, 1988, which holds the insurer liable to pay compensation with the right to recover from the owner and the driver.

JUDGMENT :

K.Somashekar, J.

This appeal is directed against the judgment and award passed by the Tribunal in MVC.No.444/2007 dated 14.10.2010, whereby the Tribunal has awarded compensation of Rs.24,250/- with interest @ 6% per annum. The liability has been saddled on the Insurance Company. The same has been incorporated in the operative portion of the order but the liability fixed on respondent Nos.1 and 2 to pay compensation to the claimant is joint and several.

2. Heard the learned Counsel for the appellant and the learned Counsel for respondent No.1 and perused the impugned judgment and award.

3. Factual matrix of this appeal is as under:

It is stated in the claim petition that on 24.05.2007, the claimant and other coolies went to Horakedevapura to load manure of Chidanandaiah in Tractor-Trailor and on that day, at about 4.30 a.m. when he was loading manure in Tractor- Trailor, a Mini Lorry bearing registration No.KA- 17/6650 driven by its driver came in a rash and negligent manner from Mathighatta to H.D.Pura, dashed to him and caused accident. He sustained simple and grievous injuries. He got admitted to the District Hospital, Chitradurga, wherein he was subjected to x-rays. It is noticed in x-rays that he sustained fracture of 3rd and 4th metatarsal bones and he has taken treatment as inpatient from 24.05.2007 to 09.06.2007. He was earning a sum of Rs.4,500/- p.m. by doing coolie work. Due to accident, he suffered injuries and also disablement.

4. In pursuance of issuance of notice to the respondents in the claim petition, the second respondent who put in appearance has filed objections to resist the claim petition denying the age, occupation, income, nature of injuries, medical treatment and expenses as claimed by the claimant. Respondent No.1-the owner of the offending vehicle did not participate in the proceedings and he was placed ex parte. It was contended by respondent No.2-Insurer in the claim petition that though respondent No.1-the owner of the offending vehicle was aware that the driver of the offending vehicle was not possessing a valid and effective driving licence, he has entrusted the vehicle to such person and violated the policy conditions. Urging these grounds, the Insurer sought for dismissal of the claim petition.

5. Based on the pleadings of the parties, the Tribunal framed the issues. On behalf of the claimant, the claimant examined himself as PW-1 and got marked documents at Ex.P1 to Ex.P8. The respondents examined RWs.1 and 2 and got marked documents at Ex.R1 to Ex.R6.

6. On evaluating the entire oral and documentary evidence placed on record, the Tribunal awarded compensation of Rs.24,250/- with interest at 6% per annum from the date of petition till realisation.

7. Sri O.Mahesh, learned Counsel for the appellant has taken me through the evidence of PW.1 and also the evidence of RW.1 and submits that the reason assigned by the Tribunal that the appellant-insurer is liable to pay the compensation is highly erroneous besides being contrary to the position of law. The Tribunal has failed to appreciate Ex.R1 D.L. extract. In light of witnesses examined on behalf of the appellant-insurer, the Tribunal has not appreciated the evidence in a proper perspective in the position of law. Both oral and documentary evidence show that the person/insured was admittedly driving the insured transport vehicle and he had no authorization for permitting him to drive a transport vehicle in violation of policy terms and conditions respecting driver's clause in the policy. Accordingly, the learned Counsel for the appellant contended that this requires to be intervened in this appeal.

8. Per contra, Sri R.Shashidhara, learned Counsel for respondent No.1 has taken me through the evidence of PW.1, wherein he has given his evidence in conformity with the averments made in the claim petition. There is no dispute with regard to the injuries sustained by the claimant as per wound certificate-Ex.P5. The injured has taken treatment as inp