JUDGMENT : 1. This Civil Miscellaneous Appeal has been preferred against the Judgment and Decree passed in M.C.O.P. No. 64 of 2007, dated 29.03.2011, on the file of the Motor Accident Claims Tribunal cum Sub Court, Palani. 2. The short facts, which leading to filing the present appeal, are as follows: The 1st respondent herein is the claimant; the 2nd respondent is the owner of the vehicle and the appellant herein is the 2nd respondent before the Tribunal. On 09.11.2006, at about 08.15 p.m., near Mollumpatty Pirivu on the Dharapuram - Palani main Road, when the alleged injured was travelling as pillion rider along with one Palanichamy, who riding the motorcycle viz., TVS50, towards south, the Tata ACE vehicle, bearing Registration No. TN-57-U-3570 coming from south to north, driven by its driver in a rash and negligent manner hit against the motor cycle and due to which the injure sustained grievous injuries. 3. The appellant herein is the insurer of the vehicle viz, Tata ACE, bearing Registration No. TN-57-U-3570, owned by the 2nd respondent herein. The claimant has filed a claim petition, claiming a sum of Rs.7,50,000/-, as compensation, in M.C.O.P. No. 64 of 2007, dated 29.03.2011, on the file of the Motor Accident Claims Tribunal cum Sub Court, Palani, for the injuries sustained by him. 4. The Tribunal, after considering the evidence on record, awarded a total compensation of Rs.3,68,000/-, payable to the claimants, directing the appellant to pay the award amount, with interest therein at the rate of 7.5% per annum, from the date of filing the petition, till the date of realization with costs. 5. This Civil Miscellaneous Appeal has been filed by the appellant Insurance Company, challenging the Judgment and Decree passed in M.C.O.P. No. 64 of 2007, dated 29.03.2011, by the Motor Accident Claims Tribunal cum Sub Court, Palani. 6. Before the Tribunal, the claim petition was resisted by the 2nd respondent/insurer of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, by filing counter statement. 7. The 1st respondent/owner of the vehicle viz., Tata ACE, bearing Registration No.TN-57-U-3570, was set ex-pate and in the claim petition as well as in this appeal also. 8. 6. Before the Tribunal, the claim petition was resisted by the 2nd respondent/insurer of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, by filing counter statement. 7. The 1st respondent/owner of the vehicle viz., Tata ACE, bearing Registration No.TN-57-U-3570, was set ex-pate and in the claim petition as well as in this appeal also. 8. According to the appellant Insurance Company/2nd respondent, who is the insurer of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, the complaint lodged by the petitioner is made with a view to claim wrongful gain from the Insurance Company, since the very fact of making complaint with Keeranoor Police Station, on 11.11.2006 for an incident which had occurred on 09.11.2006 shows that the entire incident was cleverly doctored, as a result of afterthought. Had the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, involved in the accident, the owner of the vehicle would have informed the accident and in the absence of such information from the owner it is clearly shows that there is no involvement of the vehicle in the accident. 9. The learned appearing for the appellant would further contend that there was no damage to the Tata Ace vehicle and no injury to the rider of the two wheeler, due to the accident, which will also prove that the said vehicle has not caused the accident. It is his further contention that the driver of the Tata Ace vehicle has got only learners license and he is not eligible to drive the goods vehicle. The Tribunal has failed to note that the disability fixed at 62% by the doctor is very excessive and the medical bills are fabricated one. 10. Supporting the findings of the Tribunal, the learned counsel appearing for the claimant has submitted that based on the evidence, the Tribunal has rightly held that the accident was due to the rash and negligent driving of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, and the finding does not suffer from any error and the Tribunal has awarded a just and fair compensation and the same cannot be interfered with. 11. I have heard the submissions made by the counsel appearing on either side and perused the materials available on record. 12. The Tribunal framed the following two points for consideration. 1. 11. I have heard the submissions made by the counsel appearing on either side and perused the materials available on record. 12. The Tribunal framed the following two points for consideration. 1. Whether the accident had occurred due to rash and negligent driving of the driver of the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570? 2. Whether the claimant is entitled to compensation? If so, to what amounts? 13. On the side of the claimants P.Ws.1 & 2 were examined. Exs.P1 to P13 were marked. On the side of the 2nd respondent/Insurance Company, in the claim petition R.Ws.1 to 3 were examined. Exs.R1 to R4 were marked. 14. Admittedly, the owner of the vehicle viz., Tata ACE, bearing Registration No.TN-57-U-3570, drove his vehicle on the date of the accident. The injured himself was examined as P.W.1 and he has deposed the involvement of the said vehicle in the accident and the accident had occurred due to rash and negligent driving of the said vehicle by its driver. The Insurer has not produced any contra evidence to justify its case. The driver-cum-owner of the said vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, did not come forward to disprove the contentions of the claimant in this case. Hence, the contention of the insurer regarding the non-involvement of the insured vehicle is not sustainable. There is no sufficient evidence by the Insurer to show the collusion between the claimant and the vehicle owner in respect of the accident. 15. There is no dispute by either side that the driver of the insured vehicle was only having Ex.P2/Learner's Licence, on the date of the accident. It is not denied that the insured vehicle viz., Tata ACE, is a goods vehicle. Ex.P3/Certificate of Registration relating to the vehicle viz., Tata ACE, bearing Registration No. TN-57-U-3570, proves the above fact and its unladen weight shown as 815 Kgs. Ex.P4/Insurance Policy also covers a person holding an effective learner's licence should have been accompanied by an instructor holding effective licence to drive vehicle, as per Rule 3(b) of the Central Motor Vehicle Rule, 1989. 16. Persons holding Learner's Licence cannot drive vehicle without an instructor. Hence, driving the goods vehicle with the Learner's Licence, without any instructor, would amount to violation of policy condition. 16. Persons holding Learner's Licence cannot drive vehicle without an instructor. Hence, driving the goods vehicle with the Learner's Licence, without any instructor, would amount to violation of policy condition. Hence, the insurer has to be directed to pay the award amount and recover the same from the owner, as per the Judgment of Principal Bench of this Court in P.Marudhachalam and Others Vs. K.Sridhar and Others reported in [2015 (5) CTC 181] relied by the counsel for the claimant in this appeal. 17. The learned counsel for the appellant submitted that the driver had a Learner's Licence on the date of accident and he is not entitled to drive the transport vehicle without adhering to Rule 3 of the Central Motors Rules, which required him to be accompanied by an instructor holding a valid driving licence to drive the vehicle. The Policy excludes especially use of the vehicle for transporting passengers on a learner's licence and hence, the Insurance Company ought to have exempted from its liability, but the Insurance Company was directed to satisfy the Award in the first instance and recover the same from the owner-cum-driver of the vehicle. In support of his contention, the learned counsel relied on the Judgment of Delhi High Court in New India Assurance Co. Ltd., Vs. Manjit Singh and Others reported in [2012 ACJ 2176]. 18. The counsel for the appellant would submit that the insurer is not liable to pay the compensation for the death or injury of the persons, in an accident in which the driver having learner's licence, drove the transport vehicle in violation of Rule 3(b) of the Central Motor Vehicle Rule, 1989, and such driving amount to violation of terms and conditions of the Insurance Policy. The learned counsel also refers the following case laws, in support of his contention that the insurer is not liable; (i) The Judgment of Karnataka High Court in New India Assurance Co. Ltd., Vs. M.Sureshappa and Another reported in [2013 ACJ 1306]. (ii) The Judgment of Principal Bench of this Court in Divisional Manager, New India Assurance Co. Ltd., Vs. Sambath and Another reported in [2014 ACJ 1640]. 19. Ltd., Vs. M.Sureshappa and Another reported in [2013 ACJ 1306]. (ii) The Judgment of Principal Bench of this Court in Divisional Manager, New India Assurance Co. Ltd., Vs. Sambath and Another reported in [2014 ACJ 1640]. 19. The learned counsel for the respondent submitted that the Tribunal cannot allow the insurer to avoid its statutory liability under Section 149 of the said Act, to pay compensation to the victims and in such circumstances, in order to protect the 3rd party victim, the concept of 'pay and recover' devised by directing the insurer to honour the statutory liability and then proceed against the owner for breach of contract. 20. The learned counsel relies the following case laws in support of his contentions; (i) The Judgment of this Court in Selvarani (Minor) Vs. Balasubramanian @ Thirumalairajan, reported in [2013 (1) TN MAC 591] in which it is held that, 'Driver possessing Learner's Licence - Breach of Terms and Conditions of Contract of Insurance - Tribunal exonerating Insurer from its liability and directing the owner to pay compensation to claimants - It is not proper Insurer directed to pay and recover. (ii). The Judgment of the Apex Court in Bhuwan Singh Vs. Oriental Insurance Company Ltd., & Another, reported in [CDJ 2009 SC 457] wherein it has been held that, 'The Act provides for grant of a learner's licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learner's licence is also entitled to drive a vehicle but it is granted for a specific period. The terms & conditions for grant of a learner's licence are different from those of a regular licence. Holding of a learner's licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. Converse however is not true. Only because the appellant held a learner's licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed”. 21. Applying the principles mentioned in the above case laws, referred to by both sides, the Insurance Company though has to be exonerated can be directed to pay and recover from the owner. In this case on hand, the Tribunal fixed the liability upon the owner and the Insurance Company jointly and severally to pay the compensation. 21. Applying the principles mentioned in the above case laws, referred to by both sides, the Insurance Company though has to be exonerated can be directed to pay and recover from the owner. In this case on hand, the Tribunal fixed the liability upon the owner and the Insurance Company jointly and severally to pay the compensation. The Driver-cum-Owner of the vehicle viz., Tata ACE, was only having learner's licence on the date of occurrence and drove the transport vehicle in violation of terms and conditions of the Insurance Policy taken by the owner of the vehicle from the Insurance Company. The learner's licence is also a licence within the meaning of provisions of Motor Vehicles Act, 1988. In view of the case laws relied by both sides in this case, the Insurance Company though has to be exonerated but can be directed to pay and recover from the owner. 22. Considering the nature of grievous injuries caused in the accident and also the period of inpatient in a private hospital, the compensation awarded under the heads of pain and suffering and also for taking nutritious food are not excessive. The medical expenses are supported with medical bills. There is no contra evidence by the respondent in respect of fixing the percentage of permanent disabilities. Hence, the compensation awarded for the partial permanent disability of 62% in this case, based on the evidence of P.W.3 and Ex.P13 for Rs.93,000/- is also not excessive one, since the date of accident was on 09.11.2006, but the date of examination of the injured by P.W.3 was only on 15.12.2010. 23. In the result, the Civil Miscellaneous Appeal is allowed in part by setting aside the liability fixed upon the insurer along with owner of the vehicle by the Tribunal in its Award, dated 29.03.2011 in M.C.O.P. No. 64 of 2007, on the file of the Motor Accident Claims Tribunal-cum-Sub Court, Palani. The appellant Insurance Company is exonerated from its liability, but is directed to pay the compensation awarded by the Tribunal at first instance to the claimant/injured/3rd party, less the amount already deposited, within a period of four weeks from the date of receipt of a copy of this order with accrued interest and later, recover the same from the owner of the vehicle, as per the mode incorporated in Para 8 of the Judgment of the Apex Court in Oriental Insurance Co. Ltd., Vs. Shri Nanjappan & Ors., reported in (2004 (1) TN MAC (SC) 211), which reads as follows:- "8. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.” On such deposit, the claimant is permitted to withdraw the entire amount deposited before the Tribunal, with proportionate interest and costs. No costs.