ORDER :

1. The instant appeal has been preferred by the insurance company against the award dated 15.3.2016 passed by the 5th Additional Motor Accidents Claims Tribunal, Durg in Claim Case No.13 of 2013, whereby the Tribunal has awarded compensation of Rs.4,10,000 in favour of the claimants/Respondents No.1 to 3 and fastened liability to pay the compensation on the Appellant/insurance company.

2. According to the claim petition moved before the Tribunal, on 24.12.2012, Deepak Kumar Sen was standing near a road. At that time, he was dashed by a tractor bearing registration No.CG 04 DA 9953 and trolley bearing registration No.CG 04 DA 9954, which was owned by Respondent No.5 and was being driven by Respondent No.4. Due to the accident, Deepak Kumar Sen died. The claimants/Respondents No.1 to 3 filed the claim petition under Section 166 of the Motor Vehicles Act before the Tribunal. After submission of their written statement before the Tribunal, Respondents No.4 and 5, i.e., driver and owner of the offending tractor and trolley did not appear before the Tribunal and remained ex parte. In their written statement, they took a plea that no accident occurred from their vehicle and a false and fabricated case has been registered against the driver of the offending vehicle. The Appellant/insurance company filed its written statement before the Tribunal and took a plea that the vehicle was being driven by the person who was not having any licence to drive the vehicle. Therefore, there was a breach of insurance policy on the part of the owner. Thus, the insurance company is not liable to pay any compensation. After recording evidence and hearing the parties, the Tribunal passed the impugned award dated 15.3.2016 and fastened liability for payment of the compensation on the Appellant/insurer. Hence, this appeal.

3. Learned Counsel appearing for the Appellant/insurer submitted that present is a case where the driver had not possessed any licence to drive the offending vehicle and, therefore, the offence under Section 3/181 of the Motor Vehicles Act has been added by police while filing the charge-sheet. The Tribunal has also recorded a finding that there was a breach of the insurance policy, but, despite that, the Tribunal has fastened liability on the Appellant/insurance company on the ground that the breach is not fundamental. The Tribunal has also not granted any right of recovery to the Appellant/ insurer. According to the Learned Counsel, in light of the judgments of this Court as well as of the Supreme Court, since the driver of the offending vehicle had not possessed any licence, order of “pay and recover” has to be passed.

4. Learned Counsel appearing for Respondents No.1 to 3 also supported the above arguments raised by Learned Counsel appearing for the Appellant/insurer.

5. I have heard Learned Counsel appearing for the parties and perused the record of the Tribunal minutely.

6. Before the Tribunal, the driver and owner of the offending vehicle, after submission of their written statement, did not appear nor did they adduce any evidence and remained ex parte. Before this Court also, even after service of notice, they did not appear. From perusal of the charge-sheet filed by police, it is well established that the charge-sheet has been filed against the driver of the offending vehicle for the offence punishable under Section 304A of the Indian Penal Code and Sections 3/181 and 5/180 of the Motor Vehicles Act. The Administrative Officer of the Appellant/insurance company, namely, S.R. Sahu, in his statement, recorded before the Tribunal, stated that at the time of accident, the driver of the offending vehicle had not possessed any valid and effective driving licence. In this regard, the insurance company demanded the driving licence of the driver of the offending vehicle through a registered letter, but, despite receipt of the letter, no driving licence was produced. He further deposed that the investigator of the insurance company, nam