Non-possession of the driving licence is a breach of policy condition and does not absolve the insurance company from liability under Section 149(2) of the Motor Vehicles Act.

R. Subbiah, J.

This appeal is filed by the insurance company as against the award dated 19. 2008 passed by the Motor Accident Claims Tribunal (Additional District Judge, Special Court for Essential Commodities Act Cases), Coimbatore, in M.C.O.P. No.989 of 2005, whereby the appellant insurance company was directed to pay the compensation amount to respondents 1 and 2/claimants and permitted to recover the same from the owner of the vehicle.

2. The facts, which are necessary to decide the issue involved in the appeal, are as follows:

.(a) Respondents 1 and 2 herein are the wife and the minor daughter of the deceased M. Ramalingam. On 33. 2004, while the said Ramalingam was riding his motor cycle bearing registration No. TN-38-P-3596 from north to south in the Mettupalayam road, a lorry bearing registration No. TNE-315 came from behind in a rash and negligent manner and dashed against the motor cycle and as a result of which, Ramalingam was dragged for over 25 feet and he succumbed to the injuries. Hence, respondents 1 and 2 made a claim for a sum of Rs. 32 lakhs as compensation for the death of the deceased Ramalingam as against the driver and the owner of the lorry in question as well as the insurance company.

.(b) The said claim was resisted by the appellant insurance company on the ground that at the time of the accident, the driver of the lorry did not possess a valid licence. Therefore, there is a violation of the insurance policy conditions and the appellant insurance company cannot be made liable to pay the compensation.

.(c) In order to prove the defence, on the side of the appellant insurance company, two witnesses were examined as R.Ws.1 and 2 and 7 documents were marked as Exhibits R-1 to R-7. By accepting the defence of the appellant insurance company, the Tribunal has come to the conclusion that the appellant insurance company has to pay the compensation amount and recover the same from the owner of the vehicle i.e. the 5th respondent herein since there is a violation of the policy conditions. Aggrieved over the said finding, the present appeal is filed by the insurance company.

3. Learned counsel for the appellant, by relying upon the judgment in National Insurance Co.Ltd. v. Vidhyadhar Mahariwaia and Others (2008) 8 MLJ 206 : (2008) ACJ 2860, would contend that the insurance company cannot be made liable to pay the compensation when the appellant having proved that the driving licence had expired more than two years prior to the accident. Under such circumstances, the observation made by the insurance company to pay the amount and to recover the same from the owner of the vehicle is not sustainable. Therefore, by setting aside the said finding, the insurance company has got to be exonerated from the liability and consequently, the owner of the vehicle has to be directed to pay the entire compensation.

4. Per contra, the learned counsel for the 1 and 2 respondents/claimants would submit that in the judgment relied on by the appellant, the question of “payment and recovery” was not dealt with by the Supreme Court. By inviting the attention of this Court to the catena of judgments, namely, New India Askusiance Co., Shimla v. V. Kamla and Others AIR 2001 SC 1419 (I): (2001) 4 SCC 342, Oriental Insurance Co. v. Zaharulnisha and Others AIR 2008 SC 2218, National Insurance Co. Ltd. v. Annappa Rappa Nesaria and Others AIR 2008 SC 1418 (1): (2008) 3 MLJ 502, Oriental Insurance Co. Ltd. v. Mohammed Hussain and Another (2008) 6 MLJ 99: 2008 (4) CTC 127 and New India Assurance Co. Ltd. V. Bommi (2009) 5 MLJ 1349 the learned counsel would contend that the insurance company cannot deny its liability in paying the compensation on the ground of non-possession of a driving licence to drive the vehicle when there is a coverage of insurance policy to the vehicle. Hence, the appeal is liable to be dismissed.

5. Heard the learned counsel for both aides and perused the materials on record.

6. In viewof the submissions