This petition is directed against the judgment of the State Consumer Protection Commission, Jammu dated 19-3-2001 and that of the Divisional Forum dated 30-6-2000, whereby the claim petition filed by respondent no.1 has been allowed and an amount of Rs 1,55,994 awarded in his favour with interest at the rate of 12% p.a. 2. Admitted facts are that respondent No.1 secured an Insurance Policy with respect to a Bus bearing registration No. JK02D-2079 on 1-3-1995, which was operative upto 28-2-1996, The said vehicle met with an accident on 10-1-1996 resulting in death of 8 persons and injury to 45 persons. The bus also suffered heavy damage in the accident. A claim was lodged by respondent No. 1 with the petitioner Insurance Company. The Insurance Company appointed surveyor to assess the loss which was assessed at Rs 1,55,992. With a view to verify the driving licence of the driver Sudershan Kumar S/O Shiv Lal R/O Sudh Mahadev a private investigator namely, Kartar Singh Multani, was deputed who carried out investigation and reported that the driving licence said to be issued by the Licensing Authority, Nahan (Himachal Pradesh) was fake. A certificate is also said to have been procured from the Licensing Authority that no such licence was ever issued. Based upon the report of Investigator, the Insurance Company repudiated the claim vide its letter dated 8-5-1997. The owner i.e. respondent No.1 lodged a complaint with the Divisional Consumer Forum alleging deficiency in service. The Insurance Company raised the defence of fake driving licence possessed by the driver who was driving the vehicle at the time of accident. During the proceedings before the Divisional Forum, besides the affidavit of the Manager of the Insurance Company R.K. Dhuppar, the petitioner Insurance Company filed affidavit of Kartar Singh Multani, Investigator. However, the Insurance Company failed to produce the Investigator for the purposes of cross-examination despite opportunities given. The survey report was also produced before the Divisional Forum. 3. Respondent No.1 took a specific plea before the Divisional Consumer Forum that he had taken all care and caution before engaging Sudershan Kumar as the driver and on verification it was found that his driving licence for Heavy Transport Vehicles was renewed upto 28-2-1997 and there was also an endorsement for driving Public Service Vehicles and he had no doubt about the genuineness of the licence. On the basis of the evidence led by the parties, the Divisional Forum allowed the complaint and awarded an amount of Rs 1,55, 992 alongwith interest at the rate of 12% p.a. to be compounded annually w.e.f. 1-9-1996 i.e. two months of the filing of the report by the surveyor and also awarded Rs 2000 as cost of the litigation. The Divisional Forum was satisfied with the explanation of respondent No.1 that he took all care and caution while engaging the driver and thus there was no breach of contract of insurance. The Divisional Forum also returned a finding that the accident was caused due to Mechanical failure and not on account of lack of skill of the driver or his negligence and therefore, rejected the defence of the Insurance Company. 4. Against the judgment and award of the Divisional Forum dated 30-6-2000, an appeal was preferred before the State Commission. Appeal came to be dismissed vide judgment dated 19-3-2001. The appellate authority concurred with the findings of the Divisional Forum and relying upon the judgment of the Apex Court in Skandia Insurance Co. Ltd. v. Kolilaber Chandravadan and others, AIR 1987 SC 1184, held that unless there is a willful breach of the contract the Insurance Company cannot be absolved of its liability of compensating the insured, even if the licence is held to be fake. 5. Mr. Jugal Kishore, learned counsel appearing for the petitioner has vehemently argued that the findings of both the Courts are contrary to law. The Insurance company having successfully established that the driving licence was fake, cannot be fastened with the liability of paying the claim to respondent No.1 in respect to damage caused to the vehicle though he admitted that so far as the liability of the third party is concerned, the Insurance company has a statutory liability. It is argued that in the event of breach of contract of Insurance, the insured is not entitled to any claim. Reliance is placed upon the judgment of the Apex Court reported as 2002 SCW 2811. He has also referred to the Insurance Policy Annexure-A, particularly the drivers clause to argue that there has been a breach of the Insurance Policy and thus the Company is not liable.. 6. The contesting respondent No.1 represented by Mr. Raghu Mehta has referred to the findings of fact arrived at by the Divisional Forum. He has also referred to the Insurance Policy Annexure-A, particularly the drivers clause to argue that there has been a breach of the Insurance Policy and thus the Company is not liable.. 6. The contesting respondent No.1 represented by Mr. Raghu Mehta has referred to the findings of fact arrived at by the Divisional Forum. The Forum has specifically held that the Insurance Company has failed to establish that the licence was fake though the affidavit of Kartar Singh Multani was filed before the Forum, but he was not produced there-after for cross-examination, despite the last opportunity and hence the said affidavit is not admissible in evidence and no reliance could be placed on that. The Forum has also held that no other record including the record from the Licensing Authority was summoned or proved to establish the genuineness of the driving licence of the driver. It is accordingly submitted that both the Courts below have rightly awarded the claim. I have heard the learned counsel for the petitioner and gone through the record on the file. The relevant clause of the Insurance Policy which require a valid driving licence to be possessed by a driver, reads as under: "Drivers Clause. Persons or Classes of persons entitled to drive any of the following -- (a) The insured (b) Any other person who is driving on the insureds order or with his permission. Provided that the person driving holds or had held and has not been disqualified from holding an effective driving licence with all the required endorsements thereon as per the Motor vehicle Act and the Rules made there-under for the time being in force to drive the category of Motor vehicle insured hereunder." Section 3 of the Motor vehicles Act prohibits driving of a motor vehicle in any public place by any person un-less he holds an effective driving licence authorizing him to drive the vehicle. Section 4 prescribes the age limit in connection with driving of motor vehicle and section 5 imposes an obligation upon the owner or the incharge of the vehicle not to permit driving of a motor vehicle by any person in contravention of sections 3 & 4 of the Act. Section 9 of the Motor vehicles Act prescribe procedure, qualifications and dis-qualifications for grant of Driving Licence. Section 10 of the Act specify various kinds of licences required for driving different type of vehicles. Section 9 of the Motor vehicles Act prescribe procedure, qualifications and dis-qualifications for grant of Driving Licence. Section 10 of the Act specify various kinds of licences required for driving different type of vehicles. Section 11 of the Act entitle a licence holder to seek additions in the driving licence for driving some other class or description of motor vehicle not earlier specified in the licence. For making such additions, some procedure is to be applied as is prescribed for grant of licence for the first time as laid down under section 9 of the Act. 7. Based upon the provisions of section 11, it is contended on behalf of the respondents that even if it is assumed that original licence was fake, the additions granted in the licence by the Licensing Authority at Jammu have to be considered as valid as the same was made after following the procedure for grant of licence as prescribed under section 9 of the Act. Therefore, the endorsement itself is to be taken as a valid driving licence to drive that particular type of vehicle. Under the endorsement, the driver was entitled to drive the vehicle that met with accident. 8. Both the forums below have returned a specific finding that the accident was caused due to mechanical failure. This finding has not been assailed in the present proceedings. The State Commission has relied upon a judgment of the Apex Court in case Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and others, AIR 1987 SC 1184 wherein the Apex Court held that the breach of the Insurance policy must be established to be willful to claim immunity by the Insurance Company. Similar view has been taken by the Apex Court in case United India Insurance Co. Ltd. v. Lehru and others, AIR 2003 SC 1292. 9. As noticed above, the accident was caused due to mechanical defect and not attributable to either skill of the driver or the negligence on his part. The Apex Court in Jatinder Kumar v. Insurance Co. Ltd. and others, AIR 2003 SC 4161 held as under: -- "So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. Ltd. and others, AIR 2003 SC 4161 held as under: -- "So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may proceed on the basis that the driver of the car did not have a valid driving licence. Question then is can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the company, solely on the ground, the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? Answer to this question in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come in the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149 (2) (a) (ii) of the Motor vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the driver." 10. The Apex Court in case National Insurance Co. v. Swaran Singh and others, AIR 2004 SC 1531 also held that the burden to establish breach is upon the Insurance Company. It has also been noticed in the afore-said judgment that the Insurance Company cannot be permitted to avoid its liability under the contract on the ground of fake licence un-less the breach is established to be willful and fundamental in nature. What has been held in the afore-said judgment is noticed below: "79. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. What has been held in the afore-said judgment is noticed below: "79. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (105) x x x x x (iii) The breach of policy condition e.g. disqualification of driver of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving licence at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose:" and the concept of "fundamental breach" to allow defences available to the insured under section 149 (2) of the Act." 10. From the law laid down by the Apex Court in various judgments noticed hereinabove, the repudiation of the contract by the Insurance Company was not justified. It has further been held that the ground of driving of vehicle on the basis of fake licence is not one of the permissible defences available to the Insurance Company under section 149 of the Motor Vehicles Act. There is no escape for the Insurance Company but to burden the liability arising out of the insurance contract. I do not find any infirmity, factual or legal in the orders impugned in the writ petition. This petition accordingly fails and is dismissed.