JUDGMENT

Kailash Gambhir, J. By way of the present appeal, the appellant seeks to challenge the award dated 23.10.2003, whereby the appellant has been made liable to pay and satisfy the award along with the insurer of the other offending vehicle i.e., New India Assurance Co. Ltd.

2. Brief facts to deal with the contentions raised by the parties are as under:

On 26.09.1995 at about 8:30 pm, the deceased Sh. Satish Kumar, driver of an auto rickshaw, was coming from Najafgarh. When he reached Arjun Park near the State Bank of India, Nangli Sakrawaton on main Najafgarh Road, he got down from the auto rickshaw to purchase bidi and when he was coming back to the said auto rickshaw, all of a sudden, Sh. Raj Sharma, who was the owner of the said auto rickshaw and employer of Sh. Satish, started the rickshaw with a sudden jerk, as a result the rickshaw turned turtle and Sh. Satish came under it. Due to the accident, Sh. Satish received fatal injuries and was taken to DDU hospital, where he was declared as ?brought dead?.

3. I have heard learned counsel for the parties and perused the record.

4. Mr. Pankaj Seth, counsel for the appellant contended that as per the evidence on record, it was sufficiently proved that the vehicle which was insured with the appellant insurance company was driven by the driver respondent no. 5 herein, who was not having a valid driving licence at the time of the accident. In support of his argument counsel for the appellant invited my attention to the deposition of Shri Ram Sharma, who in his cross-examination categorically stated that at the time of the accident he was having a driving licence to drive a two- wheeler scooter while the vehicle involved in the accident was a three wheeler scooter falling in the category of LMV as defined under Section 2 (21) of the Motor Vehicles Act, 1988. Counsel for the appellant urged that the driver of the vehicle was also the owner of the vehicle and it was in his knowledge that the licence held by him authorizes him to drive only a two-wheeler scooter and that he could not drive an auto rickshaw in the absence of an endorsement on his driving licence authorizing him to drive the LMV (TV) as required under Section 10(2) of the MV Act. Counsel thus contended that there is clear violation of the insurance policy and therefore, the appellant cannot be made liable to pay any amount towards the compensation. The counsel submitted that even if the appellant is made liable to satisfy the award at the first instance, then, at least the appellant is entitled to recovery rights against the owner insured. In support of his arguments counsel for the appellant has placed reliance on the following judgments:

a. M. Balasubramanya v. Pradyumna and Ors. - 2007 ACJ 176 (Kant.);

b. National Insurance Co. Ltd. v. Oliji Gopal Reddy and Ors. - 2007 ACJ 139 (Andh. Pra.);

c. Oriental Insurance Co. Ltd. v. Syed Ibrahim and Ors.- (2007) 11 SCALE 184 (SC); and

d. National Insurance Co. Ltd. v. Swaran Singh and ors. - 2004 ACJ 1

(SC).

5. Per contra Ms. Neha Gupta, counsel for respondents 1 to 4 and Mr. K.P.S. Chauhan counsel for respondent No. 5 vehemently refuted the said contentions of counsel for the appellant and submitted that the award passed by the tribunal is just, fair and reasonable and requires no interference.

6. Section 2(21) of the Motor Vehicles Act defines `light motor vehicle', Section 2(27) refers to ?motor cycle?, while Section 10 (2) refers to `Form and contents of licences to drive?. The said provisions are reproduced as under:

Section 2 (21) ?Light motor vehicle? means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7,500 Kilograms)

Section 2(27) "motor cycle" means a two-wheeled motor vehicle, inclusive of any detachable side-car having an extra wheel, attached to the motor vehicle;

Section 10 (2) A learner's licence or, as the cas