S.R. NAYAK, J.

( 1 ) IN this appeal preferred by the Insurance Company under Section 173 (1) of the Motor Vehicles Act, 1988 (for short, the), the correctness of the judgment and award dated 16th August, 2001 passed in mvc No. 1 of 1998 on the file of the Court of the Principal District judge and Motor Accidents Claims Tribunal, Dharwad (for short, the mact), awarding compensation of Rs. 3,14,800/- with interest at the rate of 6% per annum from the date of claim petition till its realization, in favour of respondents 1 to 4 who are the claimants in MVC No. 1 of 1998 is called in question.

( 2 ) ON 4-12-1997 at about 6. 45 p. m. a tempo bearing Registration No. KA-25/6976 driven by its driver Moinuddin, by name, in high speed and rash and negligent manner without observing the traffic rules dashed against the deceased Yellappa Talawar alias Walikar near Navalur railway Station on Poona-Bangalore National Highway No. 4 as a result of which Yellappa Talawar died on the spot.

( 3 ) THE legal representatives of the deceased alleging that the accident took place on account of rash and negligent driving of the driver of the tempo filed claim petition under Section 166 of theclaiming compensation. The respondent 5 in this appeal who is the owner of the motor vehicle involved in the accident and who was impleaded as respondent 1 in the MVC, despite service of notice, remained ex parts. The appellant- insurance Company which was impleaded as respondent 2 in the MVC filed its objection to the claim petition inter alia contending that the driver of the tempo was not having a valid and effective driving licence to drive any transport vehicle on the date of accident and that he was having licence to drive light motor vehicles only and, therefore, the owner of the vehicle is guilty of the breach of conditions of insurance policy and in that view of the matter, the Insurance Company is not liable to pay compensation and consequently, the claim petition filed by the legal representatives of the deceased should be dismissed in limine.

( 4 ) THE MACT in the light of the pleadings of the parties have framed the following issues for trial:

"1. Whether the petitioners prove that the accident that took place on 4-12-1997 at about 6. 45 p. m. on Poona-Bangalore Road near navalur Railway Station was due to the driving of the tempo bearing Registration No. KA-25/6976 by its driver

2. Whether the petitioners further prove that due to the accident in question, the deceased Yallappa sustained grievous injuries and died on the spot

3. Whether the petitioners prove that they being the L. Rs of the deceased, are entitled for compensation

If so, to what extent and from whom"

( 5 ) THE claimants, in support of their claim, examined the first claimant as P. W. 1 and also examined one Basappa Mallappa Ingalalli as p. W. 2 and produced 7 documents marked as Exs. P. 1 to P. 7. On behalf of the Insurance Company, a Senior Assistant, Siddalingaswamy basayya Kombal, by name, working in the appellant-Insurance Company was examined as R. W. 1 and Assistant, RTO, Dharwad was also examined as R. W. 2 and produced 5 documents marked as Exs. R. 1 to R. 5.

( 6 ) THE MACT having considered oral and documentary evidence answered issues 1 to 3 in the positive and awarded compensation of Rs. 3,14,800/ -. In this appeal filed by the Insurance Company, it is contended that the liability to pay compensation should not have been imposed on the Insurance Company inasmuch as the driver of the vehicle involved in the accident did not have valid and effective licence to drive the transport vehicle on the date of the accident and since the insured vehicle was driven by the driver of the insurer in breach of conditions of Insurance Policy, liability to pay compensation to third parties could not have been imposed on the Insurance Company. Therefore, the only question that arises for decision in this appeal is whether the Insurance Company is liable to pay compensation awarded by the mact to the claimants or not.

( 7 ) BEFORE the Tribunal, on behalf of the Insurance Company, it was contended that Moinuddin who was the driver of the motor vehicle involved in the accident had only licence to drive light motor vehicles and he did not have valid and effective licence to drive the transport vehicles. It was also contended that the driver of the public service vehicle must have a specific driving licence, with specific endorsement on it to drive a public service vehicle and since Moinuddin did not possess licence with such endorsement, it should be held that at the time of accident, the vehicle was driven by its driver in breach of conditions of insurance Policy. In support of the above stand, the Insurance Company placed reliance on the judgment of this Court in Prakash v Hanuman- thraya and Others. The above contention of the Insurance Company was countered by the claimants by contending that the unladen weight of the motor vehicle involved in the accident was only 2075 Kgs and, therefore, the said vehicle should be treated as light motor transport vehicle and if it is so treated, the Insurance Company could not escape its liability to pay compensation to third parties. In support of that contention, reliance was placed on a Division Bench judgment of this court in United India Insurance Company Limited, Mysore v Shivanna and Others. The MACT having accepted the contention of the claimants and following the judgment of the Division Bench in Shivannas case, supra, rejected the aforementioned contention of the Insurance Company and passed the impugned award holding that the insurer and insured are jointly and severally liable to pay the compensation.

( 8 ) WE have heard Sri B. C. Seetharama Rao, learned Standing Counsel for the appellant-Insurance Company and Sri H. Chandrashekara P. Patil, learned Counsel for the claimants-respondents 1 to 4. Since the owner of the motor vehicle involved in the accident was placed ex parte before the MACT, notice to him in this appeal was dispensed with by an order of this Court.

( 9 ) SRI B. C. Seetharama Rao would contend that since it is satisfactorily proved that the insured has violated the terms of Insurance Policy by allowing a person without valid and effective driving licence to drive the vehicle involved in the accident, the MACT ought to have exonerated the Insurance Company from the liability of paying compensation. Sri seetharama Rao would contend that the driver of the offending vehicle had only licence to drive light motor vehicles and not passenger transport vehicles. Sri Seetharama Rao would also point out that a copy of the extract of driving licence held by Moinuddin on the date of the accident produced as Ex. R. 2 does not bear the required endorsement from the competent Authority under the and, therefore, it should be held that the driver of the offending vehicle drove the vehicle in breach of conditions of Insurance Policy. According to Sri Seetharama Rao, the liability to pay compensation should be imposed only on the owner of the offending vehicle and not on the Insurance Company. Per contra, Sri patil, learned Counsel for the claimants, placing reliance on the judgments of the Division Bench of this Court in Shivannas case, supra, new India Assurance Company Limited, Bangalore v B. V. Paramesh and Others and National Insurance Company Limited, Bangalore v smt. H. D. Nagarathnamma and Others , and drawing our attention to the definition of the term "light Motor Vehicle" in clause (21) of Section 2 of the Act, would contend that the judgment of the MACT is unexceptionable. Further, Sri Patil would contend that in the statement of objections filed before the MACT, the Insurance Company nowhere has pleaded that the owner of the offending vehicle entrusted that vehicle to moinuddin to drive knowing fully well that the latter did not have valid and effective driving licence to drive the tempo. In that view of the matter, Sri Patil would contend that even assuming, but not admitting that there was breach of conditions of policy on the part of the owner of the vehicle in allowing Moinuddin to drive the offending vehicle, even then, exonerating the Insurance Company from the liability of paying compensation to the third party or permitting the Insurance Company to recover the sum paid as compensation from the insurer/owner would not arise.

( 10 ) ADMITTEDLY, on the date of accident, Moinuddin, driver of the offending vehicle had valid and effective driving licence to drive light motor vehicles. The contention of Sri B. C. Seetharama Rao, learned standing Counsel for the Insurance Company is that the owner of the vehicle ought not to have allowed such person to drive transport vehicle. In support of that contention, before the MACT as well as before this court, a judgment of a learned Single Judge of this Court in Prakashs case, supra, was cited. Of course, in that case, the contention before the mact was that Insurance Company concerned in that case was not liable to pay compensation as the driver of the offending vehicle had no valid and effective driving licence. In that case, the offending vehicle was insured with the Insurance Company during the period of accident, but the Insurance Company denied the liability to pay compensation by contending that the driver of the offending vehicle had a licence to drive only light motor vehicles, but he caused accident while driving a transport vehicle and thus the owner of the vehicle breached conditions of the insurance Policy, and in that view of the matter, the Insurance Company cannot be made liable to pay compensation. Accepting that contention, the Tribunal held that the Insurance Company was not liable to pay compensation as the driver of the offending vehicle had no valid and effective driving licence on the date of accident. When the correctness of that finding was called in question before this Court, a learned Single judge of this Court held that the Insurance Company was not liable to pay compensation.

( 11 ) THAT judgment of the learned Single Judge of this Court, in our considered opinion, is no longer good law in view of the judgment of a co-ordinate Bench of this Court in Shivannas case, supra and judgment of the Supreme Court in National Insurance Company Limited v swaran Singh and Others.

( 12 ) ASHOK Bhan,. , as his Lordship then was, speaking for the Division bench, in Shivannas case, supra, in para 10, held thus: we do not find substance in the argument raised. Admittedly, the driver of the offending vehicle possessed a licence to drive light motor vehicles from 23rd April, 1992 to 20th of April, 1995. He was authorised to drive heavy goods vehicle with effect from January 1993. As the accident took place on 15th of June, 1992, the endorsement issued on January 1993 to drive heavy goods vehicle has no much relevance. As on the date of the accident he had a licence to drive light motor vehicle. As per the definition clause in section 2 (21) of the Motor Vehicles Act, 1988 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 Kgs (7,500 Kgs was substituted for 6,000 Kgs by Section 2 of54 of 1994, with effect from 14-11-1994 ). It is not in dispute that the unladen weight of the offending lorry in question as per b Register extract of the vehicle Ex. R. 3 is 4960 Kgs. As the weight of the offending vehicle was 4960 Kgs. e. , much less than 7500 Kgs, it has to be treated as light motor vehicle. Light motor vehicle as per the definition would include a transport vehicle also". In that case, on behalf of the Insurance Company, it was contended that the driver of the offending vehicle did not have a valid and effective licence to drive the said vehicle on the date of the accident and that the driver had licence to drive light motor vehicle only, whereas the motor vehicle involved in the accident, was a goods vehicle, a transport vehicle. In other words, it was contended on behalf of the Insurance Company that a person with a licence to drive light motor vehicle can only drive passenger motor cars, jeeps etc. , and not a goods or public transport vehicle. While rejecting that contention, the Division Bench held as above.

( 13 ) THE term light motor vehicle is defined in clause (21) of Section 2 of the. It reads as follows: "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 7500 kilograms".

( 14 ) THE term "transport vehicle is also defined in clause (47) of section 2 of the. It reads as follows: transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle".

( 15 ) IN the instant case, admittedly, the unladen weight of the vehicle involved in the accident, was only 2075 Kgs. Since the unladen weight of the offending vehicle is far less than prescribed maximum of 7500 Kgs, that vehicle should be treated as a light motor vehicle. In other words, even a transport vehicle fulfilling condition with regard to unladen weight has to be treated as a light motor vehicle within the meaning of that term as defined in clause (21) of Section 2 of theand, therefore, it should be held that the driver of the offending vehicle Sri Moinuddin, on the date of accident, had held valid and effective licence to drive the offending vehicle also. Therefore, in our considered opinion, the MACT has not committed any error in law in rejecting the contention of the insurance Company.

( 16 ) SRI B. C. Seetharama Rao, perhaps, realising the weakness in his argument, would lastly contend that in the event of this Court holding that the appellant-Insurance company is liable to pay compensation to the legal representatives of the deceased, it should at least permit the insurance Company to recover money paid as compensation to the claimants from the owner of the offending vehicle in this proceedings itself, instead of driving the Insurance Company to Civil Court for that purpose.

( 17 ) THE above submission of the learned Standing Counsel is also not acceptable to us. A Division Bench of this Court in Smt. H. D. Nagarath- nammas case, supra, having considered number of authorities, held that:"merely because in a given case the vehicle was driven by a person holding no licence or holding a licence which may be said to be not covering the vehicle, cannot be said to amount to breach of conditions, unless entrustment is established that the vehicle has been entrusted by the owner of the vehicle and breach has been a conscious act and a wilful breach". In other words, it is not enough that the Insurance Company alleges and proves that the driver of the offending vehicle drove the vehicle and caused accident in breach of conditions of insurance policy. In addition to establishing that fact, it is also absolutely necessary for the Insurance company to plead and establish by legal evidence that the owner of the offending vehicle consciously and deliberately allowed a person to drive the vehicle in breach of conditions of policy.

( 18 ) IN this case, the Insurance Company, in its written statement, has not pleaded that the owner of the offending vehicle knowing fully well that Sri Moinuddin did not possess valid and effective driving licence to drive the transport vehicle involved in the accident, permitted him to drive and thereby committed breach of conditions of the policy, In order to enable the Insurance Company to recover compensation money paid by it to the third parties from the owners of the offending vehicles, pleading and proof of both facts noticed above are absolutely necessary. These requirements are not satisfied by the Insurance Company in the present case.

( 19 ) IT is true, that by virtue of the judgment of three-Judges Bench of the Supreme Court in Swaran Singhs case, supra, the Tribunal is empowered to decide inter se disputes between the Insurance Companies and the insured-owners, and issue appropriate orders, directing the insured to make good the compensation money paid by Insurance Company to third parties, in the event of the Tribunal finding that the insured is guilty of violating conditions of insurance policy and if such breach is "fundamental breach" in the estimation of the Tribunal. In this case, there is neither proper pleading in that regard nor proof to grant the relief. Be that as it may, as held by us, on merit too, it cannot be said that the owner of the offending vehicle is guilty of breach of conditions of insurance policy, by allowing Moinuddin to drive the vehicle. Since moinuddin, admittedly, had valid and effective driving licence to drive light motor vehicles on the date of the accident, that licence had enabled him to drive a transport vehicle also inasmuch as its unladen weight was less than 7500 Kgs.

( 20 ) IN the result and for the foregoing reasons, we dismiss the appeal however, with no order as to costs.