THOTTATHIL B. RADHAKRISHNAN, J. ( 1 ) THIS appeal is by the owner of a motor vehicle that was involved in an accident. The claims Tribunal passed an award in favour of the injured claimant and directed the insurer to pay the award amount to the claimant after holding that the insurer was entitled to reimbursement from the insured, the appellant. ( 2 ) THE appellant/owner and the driver of the vehicle jointly engaged the same Counsel before the Tribunal, but did not file any pleadings in answer to the claim petition. The insurer contended that the driver did not have any valid licence to drive a goods carriage, the type of the vehicle that was involved in the accident. Through Ext. B-2, it came out in evidence that, on the date of accident the driver possessed licence only to drive light motor vehicles and it was long thereafter that he came to have badge in terms of the Motor Vehicles Rules, to drive goods vehicles. These facts are also not in dispute. ( 3 ) THE learned Counsel for the appellant/ owner relying on the decision of the Apex court in National Insurance Co. Ltd. v. Swaran singh, urged that for the insurer, to be absolved from liability, there must be pleadings and proof on the side of the insurer that the driver did not possess the necessary licence to drive the type of the vehicle involved in the accident but also that non-possession of such a licence was the reason for the accident and further that the owner had consciously authorised the driver to drive the vehicle, after having known that the driver did not possess the necessary licence. ( 4 ) THE learned Counsel for the insurer, on the other hand, urged that the contentions as advanced on behalf of the appellant does not have any foundation in the ratio of the decision in Swaran Singh's case (supra) and that the later decision of the Apex Court in national Insurance Co. Ltd. v. Kusum Rai, would show the manner in which Swaran singh's case has to be understood. He also relied on a Bench decision of this Court in sulochana v. Chandran, but to demonstrate as to what is an effective driving licence within the provisions of the Law. Ltd. v. Kusum Rai, would show the manner in which Swaran singh's case has to be understood. He also relied on a Bench decision of this Court in sulochana v. Chandran, but to demonstrate as to what is an effective driving licence within the provisions of the Law. Reference was also made by the learned Counsel to the decision of the Apex Court in Jitendra Kumar v. Oriental Insurance Co. Ltd, in support of his submission as to what are to be treated as situations where the absence of due licence may not be a defence for the insurer against the claim. ( 5 ) AS already noticed, neither the appellant nor the driver had filed any pleadings before the Tribunal. They stood as silent spectators through their Advocate during the proceedings before the Tribunal. The learned Counsel for the appellant, however, points out that they were not required, at all, to place any pleadings in view of the defence taken by the insurer that the accident was not due to the negligence of the driver of the vehicle and in the absence of any specific pleading in the objections of the insurer before the Tribunal that the insured owner had consciously authorised thedriver to drive the vehicle, being aware of the facts that the driver did not possess the necessary licence to drive the type of the vehicle that was involved in the accident, no liability could be attached to the insured owner. ( 6 ) IN paragraph 102 of the Swaran Singh's case, the Apex Court had summarised the findings on the various issued decided in that case. Finding No. 3 is that the breach of policy condition, like disqualification of driver, has to be proved and the insurer has also to prove that the insured was guilty of the negligence and had failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding the use of vehicle by duly licensed driver and that mere absence or invalidity of driving licence by itself is insufficient to exonerate the insurer of the liability. The insurer, going by point no. 4 in that judgment has to establish breach on the part of the owner of the vehicle, apart from the other available defences and that the burden of proof regarding the breach of the policy condition shall be on the insurer. The insurer, going by point no. 4 in that judgment has to establish breach on the part of the owner of the vehicle, apart from the other available defences and that the burden of proof regarding the breach of the policy condition shall be on the insurer. Under point No. 5, Their Lordships stated that the Court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as, the same would depend upon the facts and circumstances of each case. Under point No. 6 in Swaran Singh's case, it was laid down that even where breach, on the part of the insured, concerning policy condition regarding holding of valid licence by the driver is proved by the insurer, the insurer would not be allowed to avoid the liability unless the said breach or breaches of the conditions are so fundamental as to have attributed to the cause of the accident. ( 7 ) IN my considered view, the aforesaid means that, if the accident is attributable to any act of omission or commission of the driver proof of such negligence has to be available to exonerate the insurer of the liability. It is in this context that the decision of the Apex Court in jitendra Kumar's case (supra) becomes relevant. It was held therein that in a case where a vehicle is lost by fire, the mere fact that, the said vehicle was driven by a person who did not have the valid licence, is not a ground for the insurer to repudiate the liability. Similar will be the situation where the accident occurs, owing to a mechanical defect. This may also be the situation when the accident is held by the competent Court, Tribunal or other authority, to have happened on account of any reason other than the negligence of the driver, who would have driven without a valid licence. Negligence of the driver is not a matter that depends upon the assertion of the insurer. It depends upon the finding that the adjudicating Authority renders. Negligence of the driver is not a matter that depends upon the assertion of the insurer. It depends upon the finding that the adjudicating Authority renders. While swaran Singh's case advises that the insurer has to establish the defence, laws relating to pleadings and proof, advise me to hold that, in a case where the insured owner as well as the driver did not place any pleadings on record and when the Tribunal has entered a finding that the accident occurred due to the negligence of the driver, there is no further burden remaining on the insurer to be discharged, for urging that the accident resulted ou t of the driving of the vehicle by a person without valid licence. ( 8 ) THE only surviving question would be as to whether the insurer in this case can be held to have not pleaded and proved that the driver was driving the vehicle under lawful authority of the insured owner. In Kusum rai's case (supra) the Apex Court was dealing with a case where the owner had not appeared. Yet, it was held that in the nature of the case, the owner of the vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. The statutory liability to pay compensation under the motor Vehicles Act is the result of the evolution of the law of torts attendant on the use of a motor vehicle and other laws arising out of the use of motor vehicle. The use of the motor vehicle is not by the driver only. The owner puts it to use by engaging or authorising another to drive. Even otherwise, vicarious liability, owing to an accident, gets attached on the owner, not merely because of his ownership of the vehicle, bu t by reason of the authorisation, he gives to another to drive that vehicle. So much so, in auditing the conduct, due diligence is expected of by one who has entrusted his vehicle to another. Even otherwise, vicarious liability, owing to an accident, gets attached on the owner, not merely because of his ownership of the vehicle, bu t by reason of the authorisation, he gives to another to drive that vehicle. So much so, in auditing the conduct, due diligence is expected of by one who has entrusted his vehicle to another. ( 9 ) ON the facts of this case, when there is not even a plea by the insured and in view of their conduct of having joined hands even to appear before the Tribunal through the same Counsel, I find absolutely no room for the insured to contend that driver drove the vehicle otherwise than with the full knowledge of the insured. In the circumstances of the case, the insured cannot plea that he had no duty to confirm for himself as to whether the driver had the requisite licence. So much so, there is a fundamental breach of policy conditions by the insured. ( 10 ) EXPLAINING Swaran Singh's case, the apex Court in Kusum Rai's case (supra) stated that it was the obligation on the part of the owner to take adequate care to see that the driver had appropriate licence to drive the vehicle and that Swaran Singh's case laid down that the liability of the insurer vis-a-vis the insured owner, depends upon several factors. ( 11 ) AS already noticed, the appellant had miserably failed to plead and prove his case before the Tribunal. This appeal is nothing but an attempt to pick holes in an award of the Tribunal and thereby an attempt to escape from the liability that the appellant owes to the insurer. The appeal is without any merit and the same is dismissed with costs. - . Page 4 of 4