JUDGMENT : (SUMATHI JAGADAM, J.) Challenge in this Motor Accidents Civil Miscellaneous Appeal is to the Order, dated 02.12.2005, passed in O.P. No.329 of 2001 by the Chairman, I Additional Motor Accidents Claims Tribunal, Nellore (for short, 'the Tribunal') whereunder the Tribunal, while dealing with the claim laid by the petitioners, under Section 166 of the Motor Vehicles Act, 1988 (for short, 'the MV Act'), for a sum of Rs.11,00,000/- on account of the death of one Potluri Madhava Rao (hereinafter referred to as 'the deceased'), who happened to be husband of the 1 st petitioner, father of petitioner Nos.2 to 4, and son of the 5 th petitioner therein respectively, declining to fix joint and several liability against both the respondents, directed the 1 st respondent/insured alone to pay the compensation amount of Rs.9,71,844/- to the petitioners with proportionate costs and interest at 7.5% p.a., from the date of petition till the date of realization and also apportioned their respective share of the compensation amount . 2. The aappellants herein are none other than the claimants, and the respondents herein are the insured and the insurer before the Tribunal. 3. The parties to this Appeal will hereinafter be referred to as described before the Tribunal, for the sake of convenience. Brief facts of the case: 4. The deceased was healthy and active, having worked as a Junior Assistant in the Works Manager Office at the Zonal Workshop, APSRTC, Kovur, before the accident. He is the sole breadwinner for the family and earned a salary of Rs.7,445/- per month. On 23.03.2011, at 10:10 a.m., while the deceased, along with two others (petitioners in the connected O.P.Nos.37 and 377 of 2002), were travelling in a Tata Sumo with registration No.AP-11-F-2228 (hereafter referred to as 'the offending vehicle'), its driver operated the vehicle in a rash and negligent manner, lost control, and collided with a turtle lorry, resulting in the death of the deceased and injuries to the other occupants of the vehicle. Consequently, the petitioners submitted the Claim Petition before the Tribunal. 5. The 1 st respondent is the owner of the offending vehicle, which was insured with the 2 nd respondent. The owner of the car remained ex parte before the Tribunal. 6. The 2 nd respondent/insurer opposed the claim and defended the usual defence that there was no rash and negligence by the offending vehicle's driver. 5. The 1 st respondent is the owner of the offending vehicle, which was insured with the 2 nd respondent. The owner of the car remained ex parte before the Tribunal. 6. The 2 nd respondent/insurer opposed the claim and defended the usual defence that there was no rash and negligence by the offending vehicle's driver. The offending vehicle is a private car; therefore, the policy does not cover the deceased. Hence, the insurance company is not liable to pay compensation and finally prayed to dismiss the Petition. 7. Based on the above pleadings, the Tribunal settled the following issues for trial in O.P.No.329 of 2001: 1. Whether the accident in question occurred, if so, was it due to the fault of the driver of the Tata Sumo bearing registration No.AP-11-F-2228? 2. Whether the claimants are entitled to the compensation, if so, to what amount and from which of the respondents? 3. To what relief? 8. During the course of the trial, all the 3 Petitions, i.e., O.P. No.329 of 2001 and O.P. Nos.37 & 377 of 2002 were clubbed together, and on behalf of the petitioners therein, PWs.1 to PW.5 were examined, and Exs.A-1 to A-15 were marked. On behalf of the contesting 2 nd respondent, RW.1 was examined and Exs.B-1 to B-4 were marked. 9. The police filed a final report in Crime No.170 of 2001 at Kodavalur Police Station for the offences under Sections 337 and 304-A of the IPC. The report establishes that the driver of the offending vehicle acted rashly, and the police have not referred to the matter as a mistake of fact. 10. The seating capacity of the offending vehicle is 8, and the car was insured as a private car; the policy was in force on the date of the accident. Ex.B-1 is the attested true copy of the insurance policy under which the offending vehicle was insured with the 2 nd respondent/insurer. One N. Sreenivasulu, who works as an Administrative Officer in the office of the 2 nd respondent, was examined as RW.1. During his evidence, Ex.B-1 (copy of the insurance policy as a private car), Ex.B-2 (affidavit of the 1 st respondent), Ex.B-3 (survey report), and Ex.B-4 (letter of repudiation addressed to the 1 st respondent) were marked. 11. The accident occurred when the deceased and others were traveling as unauthorized passengers. During his evidence, Ex.B-1 (copy of the insurance policy as a private car), Ex.B-2 (affidavit of the 1 st respondent), Ex.B-3 (survey report), and Ex.B-4 (letter of repudiation addressed to the 1 st respondent) were marked. 11. The accident occurred when the deceased and others were traveling as unauthorized passengers. The second respondent/insurer is absolved from his liability on the ground that the offending vehicle was not covered by a policy to protect the passengers. 12. It is not the case of the Insurance Company that the policy was not in existence at the time of the accident. Therefore, the insurance company cannot take the plea that the Policy does not cover the deceased. It is a private vehicle, and therefore, the insurance company is not liable to pay compensation. 13. In similar circumstances, the High Court of Andhra Pradesh at Hyderabad in United India Insurance Company Limited, Hyderabad v. Katikala Indira and others , [2013 SCC OnLine AP 576] held as follows: “ 17. In terms thereof once it is established that the Tata Sumo vehicle in which the deceased was travelling met with an accident causing grievous injuries and resulting in the instantaneous death of the deceased, the claim made by the dependents is valid and the appellant being the insurer of the crime vehicle, the obligations of the appellant flow out of such insurance policy. In the instant case, the facts on record disclose that the death is caused out of the use of Tata Sumo Motor vehicle insured by the appellant.” 14. The deceased was 39 years old and was survived by his wife, three minor children, and his mother at the time of the accident. In support of their claim for compensation, they argued that they were solely dependent on the deceased's income, and due to his sudden demise, the entire future of their family has been adversely affected. The children are unable to pursue their studies, and they have lost their source of income, love, and affection. 15. The deceased served as a Junior Assistant at APSRTC. The Superintendent from the Zonal Workshop was examined as PW.4 and marked Ex.A-6, which is the salary certificate of the deceased. The children are unable to pursue their studies, and they have lost their source of income, love, and affection. 15. The deceased served as a Junior Assistant at APSRTC. The Superintendent from the Zonal Workshop was examined as PW.4 and marked Ex.A-6, which is the salary certificate of the deceased. However, due to discrepancies in PW.4?s testimony, the deceased's monthly income was fixed at Rs.866/- p.m. The court awarded a sum of Rs.9,71,844/- against the original claim of Rs.11,00,000/- to the petitioners under the headings of future prospects, loss of dependency, consortium to the first petitioner and loss of estate, determined that the 1 st respondent, the owner of the offending vehicle, is solely liable to pay the compensation, stated above. 16. Aggrieved by the impugned order and decree, dated 02.12.2005, in O.P. No.329 of 2001, the petitioners/appellants have filed the instant Appeal on the ground that the impugned order and decree are contrary to law and the weight of evidence. The Tribunal concluded that the accident occurred due to the rash and negligent driving of the offending vehicle's driver without considering the existence of a valid insurance policy. It concluded that since no extra premium was paid to cover the passengers travelling in the vehicle, the insurance company cannot be held liable to pay compensation for the deaths or injuries of those passengers and that the owner of the offending vehicle is solely liable to satisfy the award and pay compensation, which effectively shifts the liability to the owner of the vehicle. Moreover, the second respondent/insurer did not raise any defense against the 1 st respondent/insured, who was set ex-parte. Since the insurance company failed to prove breach of the terms and conditions of Ex.B-1 – the insurance policy on the part of the 1 st respondent, the 2 nd respondent/insurer cannot be relieved of its liability. 17. The Tribunal has absolved the 2 nd respondent/insurance company from paying compensation solely by stating that the deceased was travelling as an unauthorized passenger. To avoid liability towards the insured, the insurer must prove that the insured was negligent and failed to exercise reasonable care in fulfilling the conditions of the policy regarding the use of the vehicle by a duly licensed driver. To avoid liability towards the insured, the insurer must prove that the insured was negligent and failed to exercise reasonable care in fulfilling the conditions of the policy regarding the use of the vehicle by a duly licensed driver. To evade liability, the insurance company must not only establish the defence raised in the proceedings but also prove a breach on the part of the vehicle's owner; the burden of proof lies with them. Ex.A-5 is a copy of the charge sheet filed against the driver of the offending vehicle for his careless and negligent driving, and the police have also filed a charge sheet under Sections 337 and 304-A of the IPC. 18. From a review of the impugned order in O.P. No.329 of 2001, dated 02.12.2005, the Tribunal rightly held that the accident in question was occurred due to the rash and negligent driving of the offending vehicle's driver. Consequently, it awarded a compensation amount of Rs.9,71,844/- with proportionate costs and interest at the rate of 7.5% per annum from the date of the petition until the date of realization. However, it wrongly fixed the liability on the 1 st respondent/insured, contrary to the law established by the Hon?ble Apex Court. 19. In National Insurance Company Limited v. Rukhshanaben Salimbhai Vora , [ 2007 ACJ 1235 (Gujarat)] , similar issue has fallen for consideration by the Gujarat High Court. Award of the Motor Accidents Claims Tribunal was challenged by the Insurance Company contending that the deceased was a pillion rider of a motor vehicle and her death was caused on account of the thread of a kite slitting the neck of the minor girl. It was contended that the accident had not occurred because of the involvement of a motorcycle, that action ought to have been initiated against the person who was flying a kite, and that the insurance company did not cover the risk of the deceased being a pillion rider. Hon?ble Gujarat High Court relying on the decision of the Hon?ble Supreme Court in Rita Devi V. New India Assurance Company Limited , [ 2000 ACJ (801 ) SC] , rejected the contention of the Insurance Company. Aggrieved by the said judgment of the Gujarat High Court, the Insurance Company carried the matter in Appeal to the Hon?ble Supreme Court by filing Special Leave to Appeal (Civil) No.89242 of 2007. Aggrieved by the said judgment of the Gujarat High Court, the Insurance Company carried the matter in Appeal to the Hon?ble Supreme Court by filing Special Leave to Appeal (Civil) No.89242 of 2007. Hon?ble Supreme Court, by order, dated 11.09.2008, rejected the contention of the Insurance Company and affirmed the decision of the Gujarat High Court. Hon?ble Supreme Court considered whether the defences that the insurer may raise in terms of sub-section (2) of Section 149 of the Motor Vehicles Act are available by contesting an application claiming damages under Section 163-A of the Act. Contending that the Insurance Company is not liable to pay compensation in view of the violation of the policy conditions, reliance was also placed on the decision of the Hon?ble Supreme Court in the case of Oriental Insurance Company Limited v. Sudhakaran K.V , [ (2008) 7 SCC 428 ] Rejecting the said contention, the Hon?ble Supreme Court held as under: “The Parliament while inserting the said provision, made a fair distinction between a claim petition filed in terms thereof and the one under Section 166 of the Act. Whereas in the former only use of motor vehicle leading to an accident may give rise to a cause of action for filing an application for compensation; in the latter any negligence on the part of the driver/owner of the vehicle is required to be established. An owner of a vehicle in terms of the said provision is made liable irrespective of any negligence in using the vehicle on his part or on the part of the driver. An owner of a motor vehicle is held to be statutorily liable in terms of the said provision, there cannot be any doubt that he being the authorized insurer shall also be liable therefore. Thus, any defence of the kind as contented would not be available to the insurer.” 20. In similar circumstances, in an un-reported decision of High Court of Kerala at Ernakulam in MACA No.1214 of 2008, dated 01.01.2008, it was held as follows: “ 18. Coming to facts, the finding of the Tribunal that there is no pleading to the effect that the 2 nd respondent/owner had failed to exercise reasonable care, etc., are not of any moment, once the third respondent/insurance company succeeded in establishing that the 1 st respondent/driver was not 'duly licensed' to drive the car at the time of accident. Coming to facts, the finding of the Tribunal that there is no pleading to the effect that the 2 nd respondent/owner had failed to exercise reasonable care, etc., are not of any moment, once the third respondent/insurance company succeeded in establishing that the 1 st respondent/driver was not 'duly licensed' to drive the car at the time of accident. This is more so since the 2 nd respondent/owner has not even canvassed a contention that the 1 st respondent/driver was duly licensed. It could thus be seen that the 3 rd respondent had established breach of policy condition in terms of Section 149(2)(a)(ii), which entitled it to seek recovery from the owner/2 nd respondent.” 21. In National Insurance Company Limited v. Swaran Singh and others , [ 2004 (3) SCC 297 ] , the Hon?ble Apex Court addressed a similar situation and held as follows at Para No.102, which is extracted below: “102. We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other; the insurer was not given opportunity to defend at all. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other; the insurer was not given opportunity to defend at all. Such a course of action may also be resorted when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” 22. Hence, in view of my foregoing discussion and the dictum laid down by the Hon?ble Apex Court and other High Courts, the Appeal is allowed in part, however, confirming the compensation amount awarded by the Tribunal and the apportionment mentioned thereunder, but by holding that both the respondents are jointly and severally liable to pay compensation amount to the petitioners instead of 1 st respondent/owner of the offending vehicle alone is liable to pay compensation to the petitioners. Further, the 2 nd respondent/insurer is directed to indemnify the compensation amount awarded to the petitioners and recover the compensation amount from the 1 st respondent/insured. Except for this modification, the remaining portion of the order holds good in all aspects. No order as to costs. Consequently, Miscellaneous Applications pending, if any, shall stand closed.