BHASKAR BHATTACHARYA, J.

1. This first appeal under the Motor Vehicles Act, 1988, is at the instance of the insurance company and is directed against an award dated 29.9.2007, passed by the Presiding Officer, Fast Track Court No. 4, Ahmedabad [Rural] in M.A.C.P. No. 558 of 1995, thereby partly allowing the application by awarding a sum of Rs. 3,33,640 with interest at the rate of 8.5 per cent per annum from the date of filing of the application till realization with a direction upon the insurance company to make that payment. Being dissatisfied, the insurance company has come up with the present appeal.

2. Mr. Sunil Parikh, learned advocate appearing on behalf of the insurance company, has taken a pure question of law in support of his submission that in the facts of the present case, the insurance company is not liable to pay the amount of compensation on behalf of the owner of the offending vehicle.

3. There is no dispute that the victim died due to negligence on the part of the driver of the offending truck insured by the appellant before me. It appears that at the time of the accident, the truck was being driven by the opponent No. 1 who was holding a driving licence for driving light motor vehicles, whereas the vehicle involved in this accident is a heavy motor vehicle, i.e., a truck. According to Mr. Parikh, in view of the decision of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 his client is not liable to pay the amount of compensation.

4. Mr. Paresh M. Darji, learned advocate appearing on behalf of the claimants-respondent Nos. 1 and 2, has, however, opposed the aforesaid contention of Mr. Parikh and has contended that having regard to the fact that the vehicle in question was not being driven by a person without holding any licence, but by a person holding a licence of different category, the court below rightly passed direction upon the insurance company to pay the amount of compensation. According to Mr. Darji, this is not a case where the driver of the offending vehicle had no licence at all.

5. Therefore, the only question that falls for my determination in this appeal is whether in the facts of the present case, the court below was justified in directing the insurance company to pay the amount of compensation.

6. After hearing the learned counsel for the parties and having gone through the decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 it appears that in the said decision, the Apex Court, while discussing the category of cases where driving of a vehicle of a category different from the one for which licence is given, pointed out that it is the duty cast upon the Tribunal to consider, on evidence, whether the fact of the driver possessing licence for one type of vehicle, but found driving another type of vehicle, was the main or contributory cause of accident. According to the Apex Court, if on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures or similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid his liability merely for technical breach of conditions.

7. In the case before us, it appears that the driver driving the offending vehicle has not been given permission to drive heavy motor vehicles, but his licence is limited to driving of light motor vehicles. Therefore, in the case before us, there was total lack of competence on the part of the driver of the offending vehicle to drive heavy motor vehicle. Such being the position, it is not a case of mere breach of technicality in the matter of licence, but a case of incompetence to drive heavy vehicle resulting in failure to control the vehicle. I, therefore, find that in the case before me, the insurance company should not be held liable and should not be asked to bear the bu