JUDGMENT 1. - I propose to dispose of these Misc. Appeals together as they all relate to an accident that occurred on 2.8.1987 involving Bus No. RJG-6040. 2. The brief facts are that on 2.8.1987 Anandilal was driving scooter No. RNE-598 and his son Basantilal was a pillion rider. They were proceeding towards the Dak Bungalow. From the opposite direction Jakir Flussain, cleaner driving rashly and negligently the above bus, came and brought the bus from the pakka road to foot-path and struck against the scooter on which Basantilal and Anandi Lai were sitting. In the process it also injured Jagdish who was standing at some distance with a cycle. On account of the above accident, the above scooter caught fire and Jagdish sustained burn injuries. The scooter was also extensively damaged. The respondents Anandi Lai, Basanti Lai and Jagdish each filed an application under Section 110-A of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') claiming compensation for the injuries caused to them by the above accident. Kanhaiyalal filed another similar application claiming compensation on account of damage caused to the above scooter. Rajmal was the owner of the above bus and Shri Kishan Singh was its driver. The above bus was insured with the respondent No. 4. All the four claim petitions came to be decided by the learned Motor Accidents Claims Tribunal, Bhilwara by order dated 2.5.1994. According to the order dated 2.5.1994 the learned Tribunal awarded the following:- 1. Anandi Lal (524/94) Rs. 2,800/- with interest @ 12% from 5/1/1998 (sic) till realisation. The amount of interim award ordered to be adjusted from the above award. 2. Kanhaiyalal (525/94) Rs. 7,000/- together with simple interest @ 9% per annum from 5/1/1988 till realisation. 3. Jagdish (535/94) Rs. 75,000/- together with simple interest @ 12% from 28/1/1988 along with cost of the application. Regarding interest it was further ordered that interest will be charged on Rs. 75,000/- from 28/1/1988 to 17/1/1990 and from 19/1/1990 on Rs. 67,500/- at the above rate. 4. Basantilal (132/95) Rs. 18,500/- with simple interest @ 12% per annum from 5/1/1988 till realisation. A similar direction regarding computation of interest. Interest was allowed from 5/1/1988 on Rs. 18,500/- and from 19/4/1990 on Rs. 11.000/- at the same rate. 3. 75,000/- from 28/1/1988 to 17/1/1990 and from 19/1/1990 on Rs. 67,500/- at the above rate. 4. Basantilal (132/95) Rs. 18,500/- with simple interest @ 12% per annum from 5/1/1988 till realisation. A similar direction regarding computation of interest. Interest was allowed from 5/1/1988 on Rs. 18,500/- and from 19/4/1990 on Rs. 11.000/- at the same rate. 3. It may be stated that the learned Tribunal passed the above award jointly and severally against the respondents 1, 2 and 3. The applications as against respondent No. 4 were dismissed because it was held that at the time of the accident, the bus was (contd. on col. 2) being driven by Jakir Hussain who possessed no driving license. Under Section 96(2)(b)(ii) of the Motor Vehicles Act, 1939 (New Section 149(2)(a)(ii) of 1988), the Insurance Company can dispute its liability on the ground that the claimants failed to prove that the driver driving the offending vehicle had no driving license. 4. I have heard learned counsel for the parties. 5. Before I proceed further, I may state that the claimants have not filed any appeal against the award passed in favour of each claimant. In these appeals filed at the instance of the owner, learned counsel for the appellants has very vehemently contended that the Tribunal committed a serious error in absolving respondent No. 4 from liability occasioned by the above accident involving the aforesaid vehicle. The owner-appellant, in his reply to the claim petition, categorically stated that at the time of the accident, the offending vehicle was being driven by Kishan Singh, respondent No. 2 and not by respondent No. 3. He denied that the above vehicle was driven by Jakir Hussain, respondent No. 3. Under Section 96(2)(b)(ii) of the Act, unless the ensured is at fault and is guilty of the breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. In the instant case, there is no dispute about these facts that in the above bus, besides the regular driver Kishan Singh, Jakir Hussain was also found. None has disputed the fact that Kishan Singh was the employed driver of the appellant in the said bus. The burden of proof lay on the respondent No. 4 to prove the breach of condition. None has disputed the fact that Kishan Singh was the employed driver of the appellant in the said bus. The burden of proof lay on the respondent No. 4 to prove the breach of condition. If it is proved that the owner-appellant allowed unauthorised person namely, Jakir Hussain to drive the bus without any valid license, there will be a breach of the condition of the insurance and in that case respondent No. 4 cannot be held liable. On the other hand, if the owner has handed over the bus to the employed driver for driving and the latter, at his own level, hands over the bus to unauthorised person and an accident occurred as a result of such unauthorised driving by unauthorised person, the Insurance Company cannot absolve itself from the obligation emanating from the policy because in such a case, there will be no breach of any condition on the part of the owner. In the instant case, if respondent No. 4 wanted to avoid his liability in respect of the above accident involving the aforesaid vehicle, it was obligatory for the Insurance Company to have proved by positive evidence that the above vehicle was being driven at the relevant time by a person having no valid license. This has not been done in the case because the respondent No. 4 has not produced any evidence except Onkarlal DW-1 who was engaged by respondent No. 4 to make investigation on his behalf. The evidence collected by him is not direct and it cannot also be said to have been conducted by a person having possessing the capacity of a Public Servant. Hence his whole testimony is hearsay and his report is not relevant because it contains collection of evidence which is not direct. Learned counsel has placed reliance on the following cases:- New India Insurance Company Ltd. v. Ramanand, 1994 ACC CJ 571 (Raj) , Champa Devi v. Ramswaroop, 1994 ACC CJ 635 (Punjab & Haryana) , National Insurance Company Ltd. v. A. Babu, 1990 ACC CJ 1003 (Madras) and Premlal Shrivas v. Manager, Perfect Poultry, 1993 ACC CJ 1069 (Madh Pra) . 6. Learned counsel for the respondent Wo. 6. Learned counsel for the respondent Wo. 4 has very vehemently controverted the statement made by the learned counsel for ; the appellant and submitted that in the instant case there is evidence to the effect that the offending vehicle was being driven at the time of accident by Jakir Hussain who had no driving license at all. This is proved by the statement of Onkar Lal as also from the documents filed by the parties. Ex.P-5 is the copy of the FIR which was lodged at Police Station, Gangapur by Nahar Singh. In this FIR the allegation is that the accident occurred because Jakir Hussain was driving the vehicle without driving license. Ex. A-2 is the certified copy of the charge-sheet that was filed against Jakir Hussain and Kishan Singh in respect of this incident. It was stated in Ex. A-2 that from investigation it was found that Kishan Singh was the driver of bus No. 6040 at the relevant time but the vehicle was being driven by Jakir Hussain having no driving license at all. The FIR and the charge-sheet must be deemed to have been proved by their production. These are public documents. Learned counsel has placed reliance on R.S.R.T.C. v. Devilal, ((1989) 2 Raj LW 60) . In this case this Court held that according to Section 74 of the Evidence Act document forming acts or records of public officers are public documents. Contents of public documents may be proved by producing their certified copies as per Section 77 of the Evidence Act. He also made reference to another case Mehta Printing Stationery v. Leela Devi, 1990 ACC CJ 542 (Raj) in which it was held that FIR is a public document and it does not require formal proof. He also submitted that there was a breach of condition proved by the fact that the offending vehicle was found having been driven by Jakir Hussain who drove the same without any driving license. This was clearly a breach of condition giving rise to the defence available to the respondent No. 4 under Section 96(2)(b)(ii) of the Act. He placed reliance on the following cases:- Kashiram Yadav v. Oriental Fire and General Insurance Co. Ltd., 1989 ACC CJ 1078 (SC) and United Insurance Co. Ltd. v. Shri Gyan Chand, 1997 DNJ (SC) 380 . 7. I have considered the rival contentions and perused the record. He placed reliance on the following cases:- Kashiram Yadav v. Oriental Fire and General Insurance Co. Ltd., 1989 ACC CJ 1078 (SC) and United Insurance Co. Ltd. v. Shri Gyan Chand, 1997 DNJ (SC) 380 . 7. I have considered the rival contentions and perused the record. First I may refer to the pleadings of the parties. In the claim petitions in para 9(a), the petitioners stated that Kishan Singh respondent No. 2 was the driver of bus No. RJG-6040 and he was employed on that bus by the appellant-owner. The appellant-owner, in his reply, denied that the bus was being driven by Jakir Hussain without driving license. According to the owner-appellant, the bus was being driven by its regular employed driver Kishan Singh. The Insurance Company respondent No. 4 has not admitted this fact that the bus was being driven by Kishan Singh. According the respondent No. 4, the bus was being driven by an unauthorised person-Jakir Hussain who had no driving license to drive the above vehicle. 8. The burden of proving breach of condition for availing the defence available to an Insurance Company under Section 96(2)(b)(ii) of the Act lies on the Insurance Company. Hence in the instant appeals burden of proof lay on the respondent No. 4 that the owner-appellant committed breach of condition by handing over the vehicle to Jakir Hussain who drove the above vehicle at the relevant time of the accident without holding any driving license. It may at once be stated that except Onkar Lal, the respondent No. 4 has not produced any evidence even to formally deny this fact that the vehicle was being driven by Kishan Singh an employed and authorised driver as averred by the claimants. The Insurance Company only produced Onkar Lal. Onkar Lal is a retired Police Officer. He was entrusted with the investigation of this case privately by the Company. He investigated and submitted his report Ex. A-1. The Insurance Company relies heavily or the statement of Onkar Lal DW-1 and the report Ex. A-1 prepared by him by inspection of site. In his statement he has stated that Rajmal told him that Kishan Singh was driving the above vehicle. However, he found the statement to be false. He volunteered the information that Jakir Hussain himself told him that he was driving the above vehicle. 4 or 5 witnesses also deposed that fact. A-1 prepared by him by inspection of site. In his statement he has stated that Rajmal told him that Kishan Singh was driving the above vehicle. However, he found the statement to be false. He volunteered the information that Jakir Hussain himself told him that he was driving the above vehicle. 4 or 5 witnesses also deposed that fact. However, no such witnesses have been produced by the insurance Company. In my considered opinion, the statement of this witness is not at all relevant and the report prepared by him is also not relevant. He derived knowledge by interrogating other persons. His evidence is not direct. The Company has not produced those persons from whom Onkar Lal derived information. Those witnesses would have been relevant for testifying the above fact. Hence the whole statement of Onkar Lal and his report Ex. A-1 are to be discarded from consideration. There is no other evidence available on the record. Learned counsel for the respondent No. 4, on the basis of the above two decisions of the High Court, tried to persuade this Court that the FIR Ex.P-5 and charge-sheet Ex. A-2 show that after investigation, the police filed a charge-sheet against Jakir Hussain and Kishan Singh. According to the charge-sheet Jakir Hussain was found driving the above vehicle. Kishan Singh was an employed driver of the appellant-owner. On the strength of the above case law, the charge-sheet as well as the FIR may be treated to have been proved but the question is what they do prove. They only proved that the FIR was lodged by one Nahar Singh against Jakir Hussain and charge sheet shows that a challan was filed against Jakir Hussain and Kishan Singh in a criminal Court for offences under Sections 279, 337-A, I.P.C. and 89 and 118-A of the Motor Vehicles Act. From the above it cannot be said that the Insurance Company succeeded in discharging its burden in proving the breach of condition namely that the owner-appellant entrusted the above vehicle to Jakir Hussain or allowed Jakir Hussain to drive the same which caused the above accident. I rely on Premlal Shrivas y. Perfect Poultry and National Insurance Co. Ltd. v. A. Babu . In Premlal's case, the Insurance Company did not produce any evidence for availing the defence as per Section 96(2)(b)(ii) of the Act. I rely on Premlal Shrivas y. Perfect Poultry and National Insurance Co. Ltd. v. A. Babu . In Premlal's case, the Insurance Company did not produce any evidence for availing the defence as per Section 96(2)(b)(ii) of the Act. In National Insurance Company's case, the motorcyclist involved in the accident did not produce his driving license despite notice to him by the Insurance Company. It was found that the Investigating Officer deposed that he had seized the learner's license of the motor cyclist but the Investigating Officer was not asked to produce it. No steps were taken to summon the record from the R.T.O. to prove that the motor cyclist had no license. Even the driver admitted that he was convicted and fined for driving the vehicle without license. The question arose whether in such circumstances, the Insurance Company is absolved from its liability? It was held that admission of the motor cyclist and his conviction are not sufficient to absolve the Insurance Company as it has not discharged the onus by taking steps to summon the license either from the Investigating Officer or from the R.T.O. In the instant case also, merely on the basis of FIR and charge-sheet, it cannot be presumed that Jakir Hussain was driving the above vehicle. On the contrary, from the charge-sheet it will appear that the police filed charge-sheet against the regular employed driver of the appellant and his cleaner Jakir Hussain who was allegedly driving the above.vehicle at the relevant time. This, therefore, appears beyond a shadow of doubt that Kishan Singh was an employed driver of the appellant-owner. If it was so then it cannot be conceived even for a moment that after employing a competent and authorised driver to drive the bus, the owner would allow the cleaner to drive the vehicle in preference to such employed competent and authorised driver. The Insurance Company has also not denied that Kishan Singh was an employed driver of the appellant. 9. The law as regards the responsibility of an Insurance Company in such cases has been dealt with in, United Insurance Company v. Gyanchand, (1997 DNJ (SC) 380) . Before the Supreme Court, two decisions of the Apex Court, in New India Insurance Co. Ltd. v. Manohar Madhav Tarribe, (1996) 2 SCC 328 and Kesharam Yadav v. Oriental Fire and General Insurance Co., (1989) 3 JT (SC) 504 , were cited. Before the Supreme Court, two decisions of the Apex Court, in New India Insurance Co. Ltd. v. Manohar Madhav Tarribe, (1996) 2 SCC 328 and Kesharam Yadav v. Oriental Fire and General Insurance Co., (1989) 3 JT (SC) 504 , were cited. The other side relied on Skandi Insurance Co. Ltd. v. Kokila Ben, (1987) 2 JT (SC) 43 . After perusing the above authorities, the Apex Court observed that the aforesaid cases clearly indicate two distinct lines of cases. The first line of cases consists of facts situation wherein the insured are alleged to have committed a breach of condition of Insurance Policy, which required them not to permit the vehicle to be driven by an (unlicensed driver Such a breach is held to be valid defence for the Insurance Company to get exonerated from meeting the claim of third parties who suffer on account of vehicular accidents which may injure them personally or which may deprive them of their bread winner on account of such accident caused by ensured vehicle. The other line of cases deals with the insured owners of offending motor vehicles that cause such accidents wherein the insured owners of the vehicles do not themselves commit breach of any such condition and handover the vehicle for driving to licensed drivers who on their own arid without permission, express or implied, of the insured, handover vehicles or act in such away that the vehicles get available to unlicensed driver for being driven by latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In fact this is the guiding ratio of the above case of the Supreme Court. On the basis of material available in the case we have to ascertain whether these appeals falls under the first category or the second. 10. I have Already stated that a very important circumstance in these appeals is that the appellant had a employed driver of the above vehicle namely, Kishan Singh. The claimants have stated this fact in the claim petitions. The appellant has also raised this plea in his reply. The Insurance Company denied that the vehicle was being driven by Kishan Singh but alleged that it was driven by Jakir Hussain who had no valid driving license. The claimants have stated this fact in the claim petitions. The appellant has also raised this plea in his reply. The Insurance Company denied that the vehicle was being driven by Kishan Singh but alleged that it was driven by Jakir Hussain who had no valid driving license. The burden of proving the breach of condition for availing the defence available under Section 96(2)(b)(ii) lay on the appellant and the same has not been discharged in the claim petitions. On the contrary, the presence of Kishan Singh at the time of accident lends credence to the theory that the appellant had employed Shri Kishan Singh as driver of the above vehicle. Jakir Hussan was a cleaner. When the appellant-owner had employed and full time driver for the above vehicle who was competent and holding valid license, it cannot be conceived that he would, in preference to such a skilled and authorised driver, given the vehicle to Jakir Hussain. It cannot be ruled out that after the entrustment of the vehicle driver Kishan Singh directly or indirectly allowed Jakir Hussain to drive the vehicle and as a result of such unauthorised driving which was rash and negligent the accident occurred. Since this act was not directly or indirectly attributable to the appellant-owner, the above defence was not available to the Insurance Company. 11. For the above reasons, I allow the appeals, set aside the dismissal of the claim petitions as against respondent No. 4 and pass the above award as also against respondent No. 4. In other words the above claims shall he deemed to have been passed against all the four respondents. No orders as to costs.Appeals allowed. *******